A Vision Betrayed: Kenya Stands at a Precipice

“The law is not merely a command but a living force that shapes and is shaped by the society it governs.” This is an argument was posited by Roscoe Pound and holds relevance in Kenya today. The school of thought states that society and law normally exist in a symbiotic relationship where the latter is used as a catalyst for social, political and cultural change. In such situations, society is required to adapt new ways, and where possible, abandon old ways. 

The clamour for Kenya’s 2010 Constitution, and its eventual promulgation clearly depicts this relationship. The Constitution is not a basic set of rules, but a bag of yearnings and aspirations by Kenyans for; better governance, improved accountability, enhanced independence of government arms and institutions, responsive representation and progressive governance structures among other things. 

Undeniably, such aspirations harboured public yearnings of a social contract that signified a break away from the autocratic past system, reknown for centralisation of power, to a democratic one that expanded “Bill of Rights” and introduced “participatory governance”. Almost fifteen years later, the relationship is at a crossroads. 

A vision betrayed

Currently, most Kenyans have largely embraced the transformative vision of the Constitution and see it as an embodiment of the spirit of a society eager to evolve into an accountable, responsive, inclusive, and transparent nation. However, a great number of the nation’s leaders continue to cling to practices rooted in patronage, impunity, and exclusion, oblivious of their constitutional mandate to serve the people. It is particularly notable in the publics view that, Parliament seems to be increasingly in a betrayal trance that occasionally perceives the Constitution as an inconvenience rather than an opportunity. 

Public participation, a foundational tenet of our Constitution, is often treated as a formality! 

The last two years are a testament to such acts, especially where legislative proposals that Kenyans rejected en-masse, were enacted into laws without considering consequences of such actions. As a result, efforts towards meaningful public participation feels tokenistic, at best. Moreover, parliamentarians issuing appalling statements to the effect that Kenyans should only be informed of laws being enacted as opposed to being involved in the law-making process is rather absurd, unconstitutional and backward looking.

The Status of Oversight

Equally concerning is the attitude of some leaders towards their oversight and accountability mandate. Critical constitutional reforms allowed for the separation of powers among the arms of government, strengthening Parliament’s role to oversight the Executive. Pre-2010, Cabinet appointments were at the President’s discretion, with little regard for merit or integrity. The 2010 Constitution empowered Parliament to vet and approve Cabinet Secretaries, ensuring that appointments were based on competence rather than political loyalty. 

Notably, during a parliamentary debate on the cabinet reshuffle nominees in August 2024, Hon. Suzanne Kiamba posed a poignant question, “The president declared we had an incompetent cabinet. I now wonder how the capacity and competence of over 70% of the cabinet (the president recalled) has developed in less than a month? Within less than a month, people who were incompetent, 70% of them, gained competence?[1]” Additionally, some Cabinet Secretaries have headed three different crucial ministries in a span of less than two years, which raises questions about parliament’s vetting process. How objective is it? Are questions posed to nominees meeting expected standards? Or is it a rubberstamp exercise?

Such instances demonstrate alarming patterns where Kenya’s leadership remains resistant to change, clinging to practices that prioritise political expediency over public service. Hon. Jared Okello late last year stated that “When people say, now we’re part of the government, so we shouldn’t ask critical questions about the issues affecting us, we’re missing the point.[2]”The sentiment reflects an unusual trend of political allegiance superseding constitutional duties.

Call to Action

As the House resumes sittings in February 2025, it is the hope of Kenyans that leaders and Parliamentarians in particular, embrace the transformative power granted to them by the Constitution and respect the sanctity of that power. Parliament must rediscover its mandate as a responsive and independent institution that upholds the vision, spirit, and aspirations of the Constitution. It must respect the changes ushered in by the 2010 Constitution and appreciate that Kenyans have progressed, and so should they. Parliamentarians must transform or risk becoming a relic of the past in a nation determined to move forward.

Duly, Kenya stands at a precipice!

Posted by Loise Mwakamba on Jan. 27, 2025

Categories:  public participation   Change   Governance