What you need to know:
- Bomas was the best of any Kenyan Constitution before or after it: the result of the participation of the largest number of people and communities ever in the country.
- It was designed by 600+ representatives of many national groups and professions, so effectively speaking for Kenyans, and no process since has achieved such involvement of the people.
- Unfortunately, the expectations of the people have not been realised — or more accurately, not realised fully. Reasons were that the people who rose to its key officers had no respect for it.
Kenyans were very excited by the 10th anniversary of Kenya’s Constitution in August. Various celebrations were held to commemorate the occasion and many tributes conferred on those who were considered responsible for it.
This Constitution has many merits and we are indeed very fortunate to have its protection -- if only our government also respected it. Most Kenyans know that it was after great struggles that the Constitution was adopted — and therefore most citizens jumped to endorse it.
Fortunes of the Constitution
Unfortunately, the expectations of the people have not been realised — or more accurately, not realised fully. Reasons were that the people who rose to its key officers had no respect for it.
There are enough of them in key offices of the state, who, led by their ethnic leaders, have sabotaged it, making the most of it for themselves—largely by violating it. Violations of the Constitution have fundamentally undermined many of its major objectives while strengthening the position of those in power.
The Bill of Rights, the longest section in the Constitution, is completely disregarded by the government—while increasing poverty, and helplessness of the poor. Some efforts are indeed made by civil society organisations to fight for citizens’ rights, and check the excesses of the government-- but their number and resources to make human rights a major theme of the Constitution are seriously limited.
Bomas Constitution of 2004
There is considerable misunderstanding about the relation between the Constitution of 2010 and that of 2004—many think that they are the same. Unfortunately, that is not the case.
The 2004 Constitution, referred to it as Bomas (for the location where it was fully debated and adopted) is truly the people's’ Constitution. It was adopted to change the oppressive government from the first year of independence. Indeed it would have succeeded if it had been accepted by the ethnic lords. Instead they brought every trick to abolish it, led in the first instance by then President Kibaki.
The plan to sabotage Bomas involved a court decision and a takeover of the Bomas draft by politicians, particularly those of a few major communities. The strategy appeared to be defeated in the 2005 referendum - though the truth was probably that those who favoured the so-called “Wako Draft” of 2005 were just as happy to remain with the old Constitution, so favourable to autocracy.
History repeated itself in 2009-10 when the Committee of Experts essentially first revived the Bomas draft. They then modified some important elements in their second draft, but the main damage was done by politicians again in 2010 when they took us back to the presidential system.
Bomas was the best of any Kenyan Constitution before or after it: the result of the participation of the largest number of people and communities ever in the country.
Its key elements were (a) promoting peace, national unity and integrity; (b) establishing a free and democratic system of good governance, constitutionalism, rule of law, human rights, and gender equity; (c) recognising and demarcating divisions of responsibility among the various organs, including the executive, legislature and judiciary to create checks and balances among them; (d) promoting peoples’ participation in the country’s governance through democratic, free and fair elections, devolution and exercise of power; (e) respecting ethnic and regional diversity and communal rights including their right to organise and participate in cultural activities and the expression of their identity—but not in politics; (f) gender equity; (g) strengthening national integration and unity; (h) creating conditions conducive to a free exchange of ideas; (i) (j) ensuring full participation of people in the management of public affairs; and (k) enabling Kenyans to resolve national issues on the basis of consensus.
These remain elements of the 2010 Constitution.
The objectives were not merely slogans--the structure of the Bomas Constitution was designed to implement them. Parliament was to consist of the National Assembly and the Senate.
Among their duties were: deliberating and resolving issues of concern to the people; ensuring equity in the distribution of national resources and opportunities among all parts and communities; and reviewing the conduct in office of all state officers.
Of special interest is the Executive, which consisted of the President (as the formal head of the state without too much authority) and the Prime Minister—the latter being of greater significance, because as head of government. The arrangement is different in the government now—the two roles are combined in the same person, giving him enormous power—the most significant deviation from Bomas.
Many Kenyans think that this is very unfortunate. It was originally secured by Jomo Kenyatta for himself (in the first capture of a Constitution and shift from a parliamentary to a presidential system in 1964) —and is now under his son. Under Bomas, the Prime Minister was to be the head of the Government, with several ministers (the Cabinet) to assist him, while many formal matters touching the State were to be dealt with the President. Now the President is all powerful—controlling all the ministers.
Bomas was designed by 600+ representatives of many national groups and professions, so effectively speaking for Kenyans, and no process since has achieved such involvement of the people.
A very obvious example is devolution, on which , after Bomas, some major changes were made that departed from the Bomas approach.
And though nearly 70 per cent voted for the 2010 Constitution in the referendum, there was perhaps not quite the same degree of enthusiasm as for the Bomas draft. We know that a large number of Kenyans voted against the 2010 Constitution, many of them encouraged by the churches. But most of them seem reconciled now.
As regards Bomas, there was no referendum, so we cannot be sure whether it would have had universal popular support in all aspects. The greatest tragedy is that by no means all the current Constitution’s provisions are implemented—even those intended to make the presidency less imperial and those intended to make devolution a real engine of local democracy and development, although the Government, questioned, might say that it supports them.
There are several outstanding studies of the effectiveness of all provisions of the Constitution. There are many provisions which support the people but are they benefiting from them? And are there situations where the government itself undermines benefits due to the people?
What is the worth of the Constitution grand though it might be?
The Constitution is messed with all the time, especially by the government, which is supposed to get its legitimacy from it.
Women for long suffered under different regimes but the Constitution promised them their rights. After ten years several of their rights supposedly guaranteed have been withheld from them.
The President and government are required to stay within the limits of their authority but the President in all his tenure of now over seven years has defied the Constitution including by undermining the judiciary
The police are supposed to discharge their responsibility with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms but end by torturing innocent citizens.
The longest chapter is for the protection of human rights but its violations are monumental.
We are all promised free and honest elections but politicians regularly bribe the electoral authorities to manipulate the results in their favour and so undermine the essential element of democracy.
The Constitution says that devolution is to promote democratic and accountable exercise of power, foster national unity, protect and promote the interests and rights of minorities and marginalised communities, and to enhance checks and balances and the separation of power. Not a single aim has been really been achieved. Counties are webs of corruption, incompetence, discrimination and enormous waste of funds.
It is clear that the Constitution, or even new laws, have had little impact on the greed and selfishness of political leaders, particularly of the five largest communities—even as the conditions of the members of these communities, as of other communities, have, if anything, deteriorated throughout this period.
We now have rich and poor classes—contrary to the values of the Constitution. These distinctions apply to other communities as well. Unfortunately the slogan of the Constitution “Sovereignty of the People” could not be further from the reality.