The 2010 Constitution's Integrity: Implement It as Intended Before Any Mutilation

Kenya's 2010 Constitution was hailed as a transformative document, designed to foster transparency, accountability, and devolution of power. However, the full potential of this progressive framework remains untapped, primarily due to remnants of the pre-2010 constitutional era and subsequent administrative inefficiencies, as well as bureaucrats who are implementing it with 1969 Constitution practices. Before any discussions on amending the Constitution, it is crucial to implement it as originally intended, without the encumbrances of past practices.

Obstacles to Full Implementation

Despite the promise of the 2010 Constitution, many institutions still grapple with practices inherited from the previous constitutional regime. These hangovers hinder the proper execution of the new laws and principles. Key examples include:

Legislators and Fund Implementation: The continued involvement of legislators in supervising funds such as the Constituency Development Fund (CDF) and the National Government Affirmative Action Fund (NGAAF) undermines the separation of powers. This practice not only distorts the role of legislators but also leads to conflicts of interest and misallocation of resources. Similarly, their influence over bodies like the Kenya Urban Roads Authority (KURA), the Kenya Rural Roads Authority (KERRA), and various water bodies diverts these institutions from their core mandates. The establishment of such mechanisms was designed during the Kibaki regime due to a lack of mechanisms such as devolution. Now that we have the devolved system, it’s time to devolve all responsibilities and allow legislators to be legislators, not quasi-executives, which was not intended.

Provincial Administration: The structure of the provincial administration, encompassing county commissioners and chiefs who just changed names from provincial to county, using the powers of the president under Article 132 and aided by legislators through legislation, has co-opted the coordination mechanism intended under Article 6 of the Constitution. This setup replicates the centralized control that the 2010 Constitution sought to dismantle, thereby stifling the devolution of power and resources to county governments.

Treasury's Overreach: The Treasury's role in financial management has overshadowed the functions of the Controller of Budget. The Constitution envisages a system where the executive plans, the Controller releases funds for implementation by the executive, and the Auditor audits expenditures. However, the Treasury has effectively usurped these roles, consolidating financial control and diminishing the intended checks and balances. This centralization of financial power not only stifles accountability but also places undue pressure on constitutional commissions and the judiciary, which remain financially dependent on the executive.

Financial Autonomy of Constitutional Commissions and Independent Offices: Critical constitutional commissions, including the Independent Electoral and Boundaries Commission (IEBC) and the Judiciary, lack the financial autonomy necessary for their independence. Their reliance on the executive for funding leaves them vulnerable to manipulation and undermines their ability to function impartially and effectively. The Treasury is the platform used to undermine these constitutional offices.

Incomplete Devolution of Power and Resources: The principle of devolution, central to the 2010 Constitution, has not been fully realized. The proper transfer of responsibilities and resources from the national to county governments remains incomplete. This partial implementation hampers local development and fails to empower counties as envisioned.

The Perils of Premature Constitutional Amendments

Discussing constitutional amendments before fully implementing the current Constitution risks undermining its integrity. Such actions could lead to the same fate as the 1963 Constitution, which was progressively altered to serve political interests rather than the needs of Kenyans. History warns against the piecemeal erosion of constitutional provisions, which can result in a document that serves the powerful rather than the populace.

To truly serve the Kenyan people, the 2010 Constitution must be completely tested, free from pre-2010 hangovers and administrative overreach. Only through faithful implementation can the Constitution’s efficacy be evaluated. Calls for amendments at this stage amount to persecuting a framework without a fair chance. Upholding the integrity of the Constitution is essential for ensuring that it remains a robust foundation for governance, development, and justice in Kenya.

 

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