The issues that Uhuru Kenyatta and Raila Odinga have identified as bedevilling the country have already been assigned by the constitution or the law to existing and established state agencies.
The BBI project is a return to autocratic rule, to an imperial president who is not accountable to parliament and to a parasitic model of government.
Kenya is in the throes of another agonised constitutional debate. Proponents of the new push for amendments argue that the time is right to cure deficiencies in the 2010 constitution. Yet that document is only a little over 10 years old, and followed a referendum that ushered in the most comprehensive constitutional reforms since independence […]
The Kenyan middle classes cannot anymore claim to sit on the fence. We are either for the current unacceptable and unsustainable status quo or we are the vanguard of transformative change.
As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.
Kenya's Executive and Legislature are guilty of a major dereliction of duty that has caused the judiciary to be turned into the primary arena of political contest in the country. This condition will only worsen as political realignments intensify in the run-up to 2022 and the elite works to perpetuate itself essentially in opposition to the constitution.
Proponents of the Building Bridges Initiative say that it will bring about equity and national unity. This might all be well and true. But it is what they are not saying that is most worrying.
With the country in the grip of a global pandemic and grappling with an ailing economy, is constitutional reform a priority when it’s not clear that the country is facing a constitutional moment?
The Supreme Court's edict to President Kenyatta on the 2/3rds gender rule was the only legal way to go argues Prof. Makau Mutua. However, while the President of the Supreme Court is a jurist, he argues, the Chief Justice is a quasi-politician advancing the spirit of the constitution in a fluid political context. The judiciary isn't equipped to resolve Kenya's political problems.
The Supreme Court’s ‘advisory’ to President Kenyatta emerged out of a constitution that anticipates the President’s recalcitrance with regards to issues such as the 2/3rds gender rule. As a result, as things stand today Kenya’s parliament doesn’t have the constitutional authority to amend the constitution. That said, the real crisis is that important leaders apparently believe patriarchy is above the law in Kenya. The Elephant in conversation with Waikwa, an advocate of the High Court of Kenya and a Barrister and Solicitor with the Law Society of Canada.
The Chief Justice's advisory on the two-thirds gender rule to the President is the most consequential decision of the Supreme Court to date. Constitutional lawyer and expert, Jill Cottrell Ghai argues that his 'advisory' is actually an instruction to the President and discusses the legal implications in comparison to other jurisdictions where similar decisions have emerged out of the highest court.
Kenya's journey towards a liberal constitution has been long and twisting. The Building Bridges Initiative (BBI) anticipates still undefined changes on the ten-year constitution that some observers view as being informed by selfish commercial and political interests of the political elite. Prof. Yash Pal Ghai, father of the 2010 constitution expresses his concerns as the direction being proposed by political leaders and profound disappointment at the direction matters are taking.
Atsango Chesoni, lawyer, renowned human rights advocate, former deputy chairperson of the Committee of Experts (COE) that finalised the current constitution, former Bomas delegate in the constitution-making process and former Executive Director of the Kenya Human Rights Commission (KHRC) describes the constitution-making process that led to the 2010 constitution. Via a participatory process, the Kenyan people imposed a constitution on their elite. Much as been achieved but the fightback has begun in earnest ten years since its promulgation.
Renown PanAfricanist academic and constitutional lawyer, Prof. Issa G Shivji reflects on the trajectory of constitution-making in Africa. He makes the compelling argument that while we need constitutions, they don’t make revolutions. Revolutions make constitutions. No constitution envisages its own death for that is what a revolution entails. But constitutions matter. Some of the finest constitutions have been erected on ugly socio-economic formations wrought with extreme inequalities and inequities. South Africa and Kenya are examples. He further explains that radical lawyers must recognise the limits of bourgeois law and constitutions because, by its very nature, law individualises collective demands thus fragmenting social struggles and undermining solidarity.
The undermining of the 2010 constitution by the Executive and an emasculated opposition that has failed to defend constitutionalism threaten to unravel thirty years of constitution-building in Kenya. Will the Kenyan constitution die as a result of this? The quick answer to this question depends almost entirely on who the country chooses to be president in 2022 and on who will be the two speakers of Parliament.
Radical lawyers must recognise the limits of bourgeois law and constitutions because, by its very nature, law individualises collective demands thus fragmenting social struggles and undermining solidarity.
The current wrangles in the senate on the revenue allocation formula are a classic example of how the constitution is designed to respond in order to protect itself.
Culture – the collective lived experience of a community – should be the basis of the construction of a nation. The constitution avers to this fact and there are provisions in the constitution for the articulation and promotion of culture. Has there been any progress in ingraining culture as a foundational basis of our society? A conversation between Mshai Mwangola and Zein Abubakar recorded on 4th August 2020 as part of the Nane Nane Webinar Series.
The 2010 constitution could not be clearer: persons with disabilities may not be discriminated against. It is, therefore, astounding that some statutes and institutions go to great lengths to ensure that they do not affirm and legitimise disability.
The pandemic has hastened the national discussion on the formation of alternative political movements and leaderships that will guarantee the national peace that the elite have shown themselves to be incapable of providing.
The Elephant in conversation with Waikwa Wanyoike, founding Executive Director of the Katiba Institute - Kenya's leading public interest litigation organisation. Currently, he is Director of Strategic Litigation at the Open Society Foundation in London.
There are at least three fundamental reasons why it is improbable that there will be BBI-inspired constitutional amendments before Kenya’s general elections in August 2022: one, the amendment procedure is long, onerous and complex; two, a broad and genuine political consensus is required; and three, the constitution explicitly creates checks against unconstitutional constitutional amendments.
Professor Makau Mutua’s proposed constitutional amendments targeting the Judicial Service Commission are highly regressive and would neuter the independence of the judiciary.
History, again, seems to be repeating itself. A system of government established in a constitution is in danger of being radically changed for the benefit of politicians. But this is not new, argues Prof. Yash Pal Ghai. In fact, a peer into the history of constitution-making in Kenya reveals a tendency of the political class to subvert theses processes for their own benefit.
The rapprochement between Uhuru Kenyatta and Raila Odinga has failed to deliver much-needed services in the ODM strongholds of Kisumu, Homa Bay, Migori and Siaya counties. Residents are now wondering whether they and their party leader were duped.
The 2010 Constitution of Kenya is among the most progressive constitutions in the world that guarantees basic human rights and gives citizens enormous powers to determine how they are to be governed. Yet, ten years after its promulgation, the Constitution has done little to alter the status quo, thanks to a political leadership that is committed to subverting the Constitution’s core values and principles.
Following the March 2018 handshake between Uhuru Kenyatta and Raila Odinga, a re-setting of a dangerous trend in Kenya is occurring, whose origins can be traced back to the aftermath of the 2007-08 post-election violence. Kenyans have become accustomed to an increasingly irritable and angry president who demands, but is not able to command, unfettered loyalty. But the climate of intolerance that the president is creating is the public face of a deeper and much more insidious plan, an attempt at remarshalling the forces that have preserved the political status-quo in Kenya since independence, at the service of which is the Building Bridges Initiative.
Is the BBI a pact between the Luo and Kikuyu elite? If so, how will it impact the 2022 elections? DAUTI KAHURA uncovers surprising reactions to the BBI report among two of Kenya’s most politically influential ethnic communities.
During the political standoff that followed the 2017 presidential election, the National Super Alliance (NASA) espoused a road map that would lead to a political settlement through the formation of a transitional government that would have spearheaded the process of building a national consensus on political reforms. But in place of a Jubilee-NASA institutional engagement came the Handshake, a commitment by Uhuru Kenyatta and Raila Odinga in their personal capacities, which has culminated in the recently released Building Bridges Initiative Report, an underwhelming document that underscores the failure of the two principals to deliver the new political dispensation they had promised.
AKOKO AKECH explains why the BBI is a revisionist project and a mock test of a political formula that has sabotaged Kenya’s democracy since independence.
The Building Bridges Initiative is an ill-disguised attempt at social engineering, a “fix the people” approach to Kenya’s problems designed to veil ours eyes from the massive looting and the privatisation of public institutions. It is meant to dissuade us from expecting social and public solutions to our challenges as a country and to instead shoulder the blame and provide for ourselves the solutions to our problems. It is a declaration of war by the political class against the people of Kenya.
The 2010 Constitution promised a brave new Kenya with clean, robust, and efficient institutions. But this promise never materialised. WACHIRA MAINA shows how state institutions, including electoral and judicial bodies, have been deliberately weakened by a system designed to protect the corrupt.
In this three-part series, WACHIRA MAINA explains how “state capture elites” have undermined anti-corruption efforts and why, despite decades of reforms and numerous commissions of inquiry, corruption remains an enduring element of Kenyan politics and society.
Constitutional amendments have preceded every Kenyan election since 1992. But have these amendments brought about real change or are they merely tools that are used to entrench the status quo? DAUTI KAHURA finds out.
On what basis are we to believe that if we change the rules, the new rules will survive the next power struggle? No amount of constitutional tinkering can cure impunity.
Proposals by politicians and church leaders to amend the 2010 Constitution serve narrow interests and could lead to further polarisation and exclusion in the country, argues CANON FRANCIS OMONDI.
AKOKO AKECH examines whether the “handshake” between opposition leader Raila Odinga and President Uhuru Kenyatta, which resulted in the Building Bridges Initiative (BBI), is truly a people-driven participatory process or merely a tool for the Kenyan political elite to consolidate their power.
We still have a hugely corrupt and dangerous elite that will do anything to continue looting and raping this country, but Yash wrote this Constitution so they can’t mess with certain things.
Ghai’s natural aptitude, not just for the law but also as an educator, quickly became clear. While teaching in Dar, he co-authored (with his colleague and friend, Patrick McAuslan) what would become one of his most well-known books, Public Law and Political Change in Kenya.
If both Parliament and these nascent movements fail to forestall the efforts of the ‘system’, it is certain to use the Chebukati report, the boundary demarcation process, the population census and the Building Bridges Initiative to entrench itself and it will be interesting to see how the ‘hustlers’ respond to this direct challenge to their ‘turn to eat’.
The constitution does not value roads more than footpaths, cars more than people, grand railways and glass office towers more than those who are forced to live and do business in mabati shacks and kiosks. The constitution shows preference for rights over law. It means it is not an adequate answer to say only “they were there illegally”. By JILL COTTRELL GHAI AND YASH PAL GHAI.
Inequality and tribal politics have been Kenya’s bain for generations and Raila Odinga’s proposals for constitutional reform – introducing a proportional representation system in Kenya would go a long way in assuaging these. The ‘handshake’ between Odinga and Kenyatta could be the start in making the important changes Kenya needs to correct some of its most persistent governance challenges, PROF. YASH PAL GHAI argues while urging caution.
Despite the talk on the necessity and content of constitutional amendments, there has been little or no discussion on the process to effect legal changes to Kenya’s Constitution. It is a Catch-22 situation. On the one hand, Parliament cannot amend the Constitution without violating it. On the other hand, there is no way the Constitution can be amended without Parliament.
The Deputy President is today considered Kenya’s most frightening political figure. If he is indeed the motivation behind ‘the handshake’, that dynastic rapprochement between the Kenyattas and the Odingas, thwarting William Ruto’s presidential ambitions to protect the merchants of a half-century of impunity may well be the cure that is worse than the disease. By JOHN GITHONGO
Unchecked, the failure by the President and the National Assembly to accept the constitutional limitations of their authority will lay the foundation for a systematic breakdown in the rule of law.
During a transition into a new presidential tenure such as Kenya is going through at this point in 2017, it is expected that people – certainly government and governance scholars – will review the outgoing tenure so as to highlight the needs of the incoming tenure. If such reviews become a habit, then the next […]
The Elephant in conversation with Prof. Yash Ghai, a constitutional lawyer and academic.
The Elephant in conversation with Prof. Yash Ghai, a constitutional lawyer and academic.
Kenya is facing both a political and a constitutional crisis. The constitutional crisis preceded the political one; if it is ignored and remains unresolved, it has the potential to exacerbate the political crisis in dangerous and unpredictable ways.
A conversation with Patrick Gathara, Caroline Kioko, Marilyn Kamuru and Lempaa Suyianka
