A Decade Later, The Constitution Still Has a Long Way to Go

Posted by on 25th August 2020

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27th August 2020 will mark exactly 10 years since a jubilant crowd of Kenyans filling up Nairobi’s Uhuru Park witnessed the then President Mwai Kibaki lift the new Constitution. This moment came after years and years of a consistent push for a change in the law.

The 2010 Constitution compared to the repealed law was premised on change. It recognized the sovereignty of the people, spelt out the national values and principles of governance, gave an elaborate bill of rights, outlined the principles of leadership and integrity, had a vision on inclusiveness and gender parity and clearly separated powers between the various arms of government.

It was not until 2013, when a new government was voted in, that the devolved system of governance began taking shape. Since then, many have attested to the benefits of devolved services and the development it has brought in return. It is within these past seven years that counties, particularly those in marginalized regions, have recorded milestones in their service delivery. Turkana County, for instance, recorded its first surgical operation last year, an achievement that would have taken much longer to attain under the old centralized system.

The Constitution, in text, planted a seed of optimism that would see a significant shift in the quality of governance, public participation and service delivery. However, it has fallen short of expectation in its implementation. Unfortunately, the past 10 years have been tainted by mass looting and mismanagement of public resources, conflicts between the government and independent government agencies, supremacy battles between the national and county governments and an archaic culture of secrecy that characterized the repealed constitution.

Constitutional reforms are yet to translate into systemic reforms. This has proven to be true particularly in the recent months that the country has been dealing with the coronavirus pandemic. To curb the spread of the virus the government enforced a number of preventive measures. Kenyans, however, did not anticipate the rise in violation of human rights by the police force and loved ones with the enforcement of these regulations. This piles on to the already existing burden of poor healthcare systems. As Scheaffer Okore put it in an article, Corona drove a chisel into our system cracks.

Prior to the news of a positive Covid-19 patient in Kenya, the Senate through a special committee was in the process of probing the Managed Medical Equipment System that has been marred with controversy from the onset. In 2019, the National Hospital Insurance Fund was at the centre of a scandal as it emerged that the fund could have lost more than Ksh. 10 billion in false claims. The mobile clinics that intended to address the gaps in health facilities in select counties, still remain unused despite costing the taxpayer about Ksh 800 million. This and more paint a grim picture of the ailing healthcare system that we have been dealing with for years.

Article 43 of the Constitution grants every Kenyan the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care. Section (2) of the same article provides that a person shall not be denied emergency medical treatment. But as the popular sheng phrase goes, Vitu Kwa Ground ni Different. Enough Kenyans have been turned away by both private and public hospitals for lack of funds. Others have watched their loved ones slowly ail to death or come out of the health facilities scarred for life over negligence or with the burden of paying hospitals bills in the millions.

Even with this grim reality, the corrupt are still going about their business enriching themselves with Covid-related funds. This is a matter of great concern for Kenyans and the civil society who have voiced their displeasure with the mismanagement of funds at the cost of Kenyans’ lives. There truly is no honour among thieves and that is why it is critical for the oversight bodies to hold the government to account and bring perpetrators to book. While Mzalendo Trust and other members of the civil society called out the theft committed against Kenyans, a lot more needs to be done by the various arms of government to stand by the Constitution that majority of us voted in favour for.

Members of Parliament right now have the herculean task to prove to be more than political mouthpieces and undertake their oversight role with diligence and integrity. Taming corruption cannot be left to ‘karma’ when there are procedures that can regain stolen taxpayer money and bring the culprits to book. This is not the vision that Kenyans had when the deafening noise filled Uhuru Park. Provisions on transparency accountability and the entire Chapter 6 need to be followed to the letter and those in contravention should be charged before a court of law. The spirit of the Constitution of Kenya needs to be upheld and respected to attain its true purpose.