Kenya’s Religious Leaders Identify Implementation Gaps in 10-year-old Constitution

A copy of the Kenyan constitution promulgated on August 27, 2010.
Credit: Public Domain

On the tenth anniversary of the promulgation of the Kenyan Constitution marked August 27, religious leaders in the East African country have identified gaps in the implementation of the document, and are now calling on various stakeholders to work towards “faithful and transformative implementation.”

In a 20-page Scorecard report issued Wednesday, August 26, representatives of religious leaders under the auspices of the Dialogue Reference Group (DRG) provide an assessment of the 17 chapters of Kenya’s Constitution, which was promulgated on August 27, 2010 having been approved by 67 percent of Kenyan voters.

One of the gaps that the DRG members have identified in the constitution is that “the State has made efforts to implement the Constitution in form but has failed to implement it in substance in order to honor the spirit and essence of the very Constitution.”

They explain, “Whereas many institutions have been set up, laws have been enacted, policies have been adopted, and county governments have been established, most of these institutions and structures have not aligned to the constitution.”

That “the culture of constitutionalism has not yet taken root” is another gap the members of the entity that brings together Kenya’s religious bodies have identified, noting that efforts to achieve the envisaged new constitutional dispensation are inhibited by “vested interests.”

The vested interests, which they say are in state institutions, structures, processes and society, “have continued to undermine the emerging of the constitutional culture that upholds and engenders the national values and principles outlined in Article 10 of the Constitution.”

“These vested interests benefit from the current status quo and are likely to be threatened by the leveling off of the ground and the consolidation of a democratic constitutional culture that upholds due process, the rule of law and where impunity is not tolerated,” the members of DRG note in the August 26 Scorecard report obtained by ACI Africa.

To the members of the four-year-old interreligious entity, “an underfunded and under-staffed judiciary whose court orders are disregarded is the most persistent evidence that the culture of constitutionalism and the rule of law has not taken root in Kenya a clear ten years since promulgation.”

“Kenya has a good constitution, but a constitution without constitutionalism creates a cultural dissonance that precipitates tensions in the society and the nation as is currently seen at all levels of the State starting from the presidency,” the representatives of the eight religious bodies that make up DRG say.

They also raise concerns about the conduct of the members of the Executive and Parliament.

“The Executive has used Acts of Parliament and Presidential Executive Orders to undermine the letter and spirit of the constitution in many instances,” the representatives of religious leaders in Kenya say in their Scorecard report of the country’s constitution.

They explain, “With a weakening oversight over the executive since the political opposition has become absent and on the side of the ruling party, Parliamentary oversight has nearly vanished. Impunity is on the rise and the constitution is therefore threatened with derogation.”

“An overbearing executive that acts with impunity and disregards court orders and the rule of law has shown that a good constitution without being respected cannot transform governance and the economic and social conditions of our country,” the members of DRG say in their August 26 Scorecard report.

They add, “A parliament that is as a side kick of the Executive and that merely serves as a rubber stamp has proved to be a burden more than a guardian angel of good governance.”

Other gaps in the implementation of the constitution that the representatives of religious leaders highlight in the Scorecard report include the failure to strengthen national values such as national cohesion, healing and unity; unethical leadership contrary to Chapter Six of the constitution; and the national government’s frustration of devolution efforts.

They also highlight elections, which they say are “very divisive, violent, expensive and lack transparency and fairness.”

Constitutional commissions are underwhelmed and underperforming and the Bill of Rights “is largely observed in breach due to the untransformed state,” they add.

As a way forward, DRG members recommend that various stakeholders “play their rightful role by taking priority steps to ensure consolidation and faithful and transformative implementation of the constitution, enhancing the culture of constitutionalism, rule of law, and democratic and inclusive governance.”

These various stakeholders, they say, “include the people of Kenya, the three arms of government, security sectors, commissions and independent offices among others.”

Established in 2016 to advance good governance, peace, cohesion and stability of the country with a focus on ensuring free, peaceful and credible elections in 2017, DRG is made up of representatives of eight religious bodies including the Kenya Conference of Catholic Bishops (KCCB).

Other member religions include the Evangelical Alliance of Kenya (EAK), Hindu Council of Kenya (HCK), the National Council of Churches of Kenya (NCCK), the Organization of African Instituted Churches (AIC), the Seventh Day Adventist (SDA), Shia Asna Ashri Jamaat, and the Supreme Council of Kenya Muslims (SUPKEM).

ACI Africa was officially inaugurated on August 17, 2019 as a continental Catholic news agency at the service of the Church in Africa. Headquartered in Kenya’s capital, Nairobi, this media apostolate will strive to facilitate the telling of Africa’s story by providing media coverage of Catholic events on the African continent, giving visibility to the activities of the Church across Africa where statistics show significant growth in numbers and the continent gradually becoming the axis of Catholicism. This is expected to contribute to an awareness of and appreciation for the significant role of the Church in Africa and over time, the realization of a realistic image of Africa that often receives negative media framing.

Father Don Bosco Onyalla
Editor-in-Chief, ACI Africa
[email protected]