As we celebrate the 8th birthday of our constitution, we mustn’t forget how far we’ve come

Posted by on 3rd September 2018

Categories:   Uncategorized

By Derrick Makhandia

(Guest blog)

Eight years ago on 27th August 2010, the current constitution was promulgated after years of strife and struggle. Every objective legal analyst agrees that it was such a huge leap from the largely oppressive document that seemed to have been revised over time to favor the president.

The current constitution elevated the people to hierarchical supremacy, with every other institution deriving its mandate from the people. It also emphasized on the rights of citizens as a fundamental tenet. It has been hailed world over as very progressive and liberal.

We could say it was such a revolutionary act that the civil society and the government made it their aim to have this document everywhere and in every format possible. Unfortunately, a huge population of the young generation did not intrinsically interact with the old constitution. Unlike the old constitution that many only knew was bad but couldn’t cite it; you are likely to find a number of ordinary wananchi today, citing the constitutional provisions of the 2010 constitution with astounding efficacy.

If we’re to really appreciate the 2010 constitution, it’s instructive to know how far we’ve come. Having some form of knowledge of the old constitution can help us in measuring the progress we’ve made so far.

Changes from the first Parliament

While so many Kenyans were excited about the 2010 constitution establishing the Senate to oversee county government and National Assembly overseeing national government; it wasn’t the first time we were having a bicameral parliament. The constitution we inherited in 1963 established two Houses of Parliament (The Senate and the House of Representatives).

There wasn’t much difference between the Parliament at independence and Parliament today, except that the membership has increased considerably. Prior to abolishing the Senate in 1966; effectively ending the bicameral Parliament, we had 41 Senators representing 40 districts and the Nairobi Area and 124 MPs in the National Assembly. And while the law did not bar any woman from vying, no woman was voted into the first parliament. During the elections, a total of 1.8 million votes were cast. In last year’s General Elections, we had more than 10 times that number registered to vote.

Other changes, though less pronounced include the removal of the President and the Attorney General from participating in Parliamentary business. In the old constitution, the two offices were ex-officio members meaning, they could participate in day-to-day activities of Parliament except voting. Another significant change is that Cabinet Secretaries (Ministers) are no longer picked from among the MPs.

Changes that significantly impact on the public

The former Constitution required 3 main qualifications for one to qualify for office: They had to be registered voters; be at least 21 years of age (this has since been dropped to 18 years); be able to speak and read English well enough to take an active part in the proceedings of the parliament (this too has since been scrapped out altogether and replaced with an academic requirement that all MPs must have a graduate degree). For the first time in a while, Kenyans had a chance of having representatives who were worth their salt; at least intellectually.

Consequently, the 2010 constitution gave the public the opportunity to be directly involved in law-making. Public participation was an ideal that was not entirely reflected in the pre-2010 Constitution. Parliament was allowed to conduct its affairs without consultation with the people who were likely to be affected by their decisions. This explains why there were several constitutional amendments from Parliament that did not involve the general public. Laws were made without consultation from the public.

The dissolution of the Senate, as well as other Constitutional amendments illustrate to us one important progress the 2010 Constitution made in reverting power to the people; that Parliament could amend the Constitution at will without consulting or input from the citizens. The current Constitution leaves Parliament with very little room to amend it.

Today, the constitution demands that Parliament conduct public participation on every matter that affects the public, and if it not done, the decision might be rendered a nullity in courts.

For us to fully appreciate, understand, enjoy and celebrate the 2010 Constitution, we must have knowledge of the pain that those before us underwent. Those of us who are young had the privilege of not directly interacting with the former constitution as much as our parents. But we must celebrate it and defend it with the same clamor and vigor our parents fought for it.