The promulgation of the Constitution five years ago was a major milestone. It marked the rebirth of a nation based on self determination of rewriting its own narratives.
This momentous decree came as a great beacon light of hope for millions of poor Kenyans who even in their ignorance of constitutional law proudly and faithfully ratified it overwhelmingly.
Though our Constitution is hailed as one of the most progressive, its implementation has turned out to be unexpectedly complicated.
Ostensibly, the five-year implementation period was marked with weighty legal questions including territorial wars between arms of governments both at national and county levels.
The complexity of the implementation process has toned down the national euphoria of great expectation and replaced it with growing anxiety of self-doubt. Such anxiety has placed the role of the presidency at the epicentre of the implementation process.
Historically, Kenya inherited a parliamentary system based on dual policy of racial discrimination that was introduced in the twilight of colonial rule.
To dismantle the system, the newly elected government initially settled for a negotiated semi-federal system. Operating the new system turned out to be complex for the then ruling party.
Consequently, the party sequentially introduced constitutional and administrative legal instruments aimed at bolstering Executive authority at the expense of other arms of government.
It is the dominance posturing of the presidency in later years that partly agitated grassroot calls for constitutional democracy.
To mitigate the presidency’s historical dominance over the other arms of government, the Constitution enshrines the doctrine of separation of power. Accordingly, the president enjoys both Executive and legislative powers.
Specifically, the Constitution vests Parliament with lawmaking powers, but directs the President to give parliamentarians information from time to time on the state of the nation.
The Constitution gives the President veto power over Acts of Parliament that require a majority of two-thirds to override it.
The Constitution has inbuilt vertical and horizontal mechanisms to check Executive powers. The citizens have an electoral right to exercise vertical accountability every five years when they elect a president.
Horizontal accountability encompasses Parliament’s oversight power, including impeachment powers and vetting and approval powers of presidential appointees for some public offices.
In addition, some of the Executive responsibilities have been constitutionally devolved to county government. Also other Executive duties have been constitutionally vested in constitutional commissions and independent offices.
Admittedly, the initial prognosis is that the accountability mechanism has weakened by delaying the effectiveness of public service delivery as evidenced by regular parliamentary summonses of members of the Executive.
Such weakness notwithstanding, the President, for instance, exploited the lawmaking duties of his office and pulled an extraordinary move by temporarily relinquishing executive power to the deputy president.
The president consciously decided to attend a status conference at the International Criminal Court at The Hague as a private citizen.
And in so doing, the President protected Kenya’s sovereignty by avoiding plunging the nation into a constitutional crisis. In hindsight, this was remarkable and epitomised constitution compliance of the highest order.
Prof Kieyah is acting programmes co-ordinator at Kenya Institute of Public Policy Research and Analysis.
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