- Kenya's Constitution was approved ten years ago this month.
- President Kenyatta's administration has been accused of undermining the Constitution.
- The independence of Parliament and the Judiciary have been particular issues.
The government of President Uhuru Kenyatta continues to be blamed for ignoring the need to fully respect the Constitution, as the nation enters the month of commemoration of the decade since the current Constitution was adopted and ratified. On August 4, 2010, the people voted in favor of the current Constitution.
It was officially approved on August 27, under the rule of retired President Mwai Kibaki. The people had hoped the new Constitution would make a difference. But now, investigators and legal experts say many things have not been done and some have been overlooked.
President Kenyatta and ODM Party Leader, Raila Odinga, are expected to amend the Constitution through the BBI. One of the main issues that have made President Kenyatta’s administration seem unwilling to respect the Constitution is how the National Assembly and the Senate were held hostage by the White House.
Constitutionally, the two government units should be free to carry out their duties without interference from outside organizations. However, the events from 2013 to date reflect a different situation, as some of the policies and laws passed are based on the wishes of the President’s Office.
According to Bahati MP, Mr. Kimani Ngunjiri, the punishment given to government critics in Parliament is a clear indication of how the Constitution is being ignored under the Jubilee administration.
“I want to tell Kenyans that there is no Senate or Parliament until we elect 2022,” he said in a speech yesterday in Kapsaret, Uasin Gishu County. It was this situation that surprised many last weeks when senators refused to comply with President Kenyatta and Mr. Odinga’s directive on a new county funding system.
Basically, it was hoped the senators would develop a style of singing the song of these political dignitaries.
Parliament Held Hostage
Confirmation of the hostage situation was also evident recently, when Sununa East MP Junet Mohamed said any MP who wanted to avoid punishment should follow the terms of President Kenyatta and Mr. Odinga’s “bulls.”
He said this when lawmakers leaning on the side of Deputy President William Ruto, who now appear to be on the side of the opposition, were punished for their stances that went against the wishes of the President.
Apart from the Office of the President and Parliament, constitutionally the third independent unit of government should be the Judiciary. Considering the repeated remarks of Chief Justice David Maraga, the signs indicate that there have been attempts to undermine the unit’s independence.
“There should be three government units. They have killed the parliament, the courts and now all that is left is a dictatorship,” said Mr. Ngunjiri. In his remarks on the state of the judiciary, Judge Maraga, who is the President of the Judiciary, does not hide the concerns he is going through under President Kenyatta.
He complains of challenges such as the lack of adequate funding to manage the department, and the President’s Office’s decision to disregard court orders. A recent order that has angered the Court is about the President’s decision to refuse to swear in 41 judges despite being instructed to do so.
However, Attorney General Kihara Kariuki claimed the government had appealed against the decision. The Central Government is also accused of violating other court orders, including not evicting people from their lands.
Ignoring Court instructions
Last week, the Minister of Homeland Security, Dr. Fred Matiang’ i, maintained that the police would not comply with any court order without the approval of the Attorney General. “We will respect court orders as long as they are approved by the Attorney General,” he said.
Aside from this, President Kenyatta has been accused of attempts to “swallow” the opposition parties and undermine democracy. The main opposition parties swallowed are ODM and Wiper Democratic Movement – Kenya, led by Kalonzo Musyoka.
Critics of the plan say it has rebelled against multi-party politics, which is crucial to the development of democracy in the country. According to the International Commission of Advocates, devolution was one of the key criteria for Kenyans to adopt the Constitution, as they hoped for leadership to be brought closer to them so that there would be equitable development.
ICJ Chairman Kelvin Mogeni explains:
“The Office of the President should fully implement the Constitution, especially on devolution. It should respect the devolution targets and ensure that the distribution of funds is done equitably and the central government does not undermine the responsibilities of county governments by delaying remittances.”
In terms of devolution, President Kenyatta’s government has also been blamed for the way it has taken on some of the responsibilities of overseeing Nairobi County.