We need open, honest constitutional reflection

Customer: “Do you have a copy of the constitution for sale”? Bookstore owner: “Sorry, we don’t stock periodicals here”. This may, or may not, be a real life story, but it seems quite appropriate for a week in which we’re celebrating, and reflecting on, the 10th anniversary of our constitution’s promulgation. We’ve had a media blitz on the “gains and pains” of implementation since August 27, 2010. In commenting on katiba’s decennial, or “tin jubilee”, Kenyan wisdom has oscillated between the “half full or half empty” glass. Let’s first agree that there’s been progress, but much remains to be done.

Which is the point of this reflection – to see what’s worked and what’s not; what explains successes and challenges; what lessons inform adjustments needed for the future, etc. Yes, a constitution isn’t an end in itself; that’s why we need constitutionalism, right? In real life, our focus this week has been thematic aspects such as human rights and devolution, and institutional stuff like performance of the executive, Parliament (national assembly and senate) and the Judiciary. Everybody has their own scorecard.

Let’s go differently. Here are three reflections on our ten-year old katiba in its “coming of age’ moment.

First, the “Building Bridges Initiative”. In his 11th Covid-19 speech on Wednesday, President Uhuru Kenyatta remarked that Kenya is a work in progress, as is our constitution. Acknowledging that “katiba” has been hailed globally as progressive, he characterised this “social contract between people of different origins…and the government” as a “ceasefire document…(an) agreement to dodge confrontation and civil conflict…(which ) enforces a zero-sum game in which the winner takes all”.

Hold your breath!! The constitution “reconciles our past with our present in order to secure our future” which it clearly hasn’t if “we were MADE to adopt it with the promise that in the future, we will make it better”. So, the future’s still on the other side of the river and we haven’t yet done the bridge. Recall those words from Madaraka Day: “We cannot re-imagine our nationhood without changing our political architecture…we cannot change this architecture without re-engineering our constitution”.

In these BBI moments, I’m not sure if Kenya (and Kenyans) got independence, liberty or freedom (for they are not the same) in 1963. Or what we have today. But that was a Covid-19 address; the constitution’s 10th anniversary was an afterthought in the speech, even though “the time is NOW”.

Second, the “Implementation Paradigm”. Ten years ago, sitting in Malawi a couple of weeks after promulgation day, I penned a couple of thoughts in the Daily Nation about “New Kenya: The Second Republic” (in 2010 we called it the Second Republic, so I’m not sure what this BBI constitutional moment means). I was concerned that we weren’t prepared to evolve our implementation worldview from “enactment and operationalization” (setting up things/eating) to “enforcement and results” (doing things/working). I offered four “boring” thoughts for the new paradigm needed. Here are two.

One, national ownership. Constitutional scholars Yash Ghai and (later, Chief Justice) Willy Mutunga warned early on against implementation “capture” by politicians and bureaucrats. An air of “counter-reform” - a focus on the mechanics rather than substance of reform – was still floating around, and we couldn’t really afford monitoring that was post-mortem. Boring idea? Real participation, effective consultation and true partnership. Mindset change by Kenyans; attitude change among our leaders. Ownership so that implementation was a national, not a government, “project”.

Two, strategic focus. On comprehensive review of the policy, legal, regulatory, institutional, administrative and operational frameworks under which our 600-plus existing laws worked. Beyond the 49 laws in the Constitution’s Fifth Schedule. On completing Serena’s Agenda 4 on long-term issues (recall the constitution was only one of ten Agenda Four issues). On what President Kibaki called Social Vision (after Katiba and Vision 2030) to drive “a change in change our values and our attitudes to reflect a transformative ethos… (and build a new) moral and ethical infrastructure (to) catalyze change…”

The other two ideas were about “smart tactics” and “managerialism:, but that’s a story for another day.

My third reflection is a bit rude. I call it our “Joint Insanity Enterprise”. As Albert Einstein put it, “insanity is doing the same thing over and over again and expecting different results”. We haven’t redesigned and downsized national government, we’ve expanded it. We haven’t properly designed and rightsized county governments. Our theory of government fails to either imagine or encompass the idea of independent institutions and offices (let alone separate arms of government). With methods unchanged for the same results, the corruption enterprise stabilises and then thrives as low-risk bureaucratic thievery and multi-agency grand larceny increasingly supplants low-return work.

Do we need to fix political architecture to improve our implementation paradigm, or to decimate our joint insanity enterprise? That’s the unanswered question for this Katiba Week. Everything else is detail.