This archive report was first published on 24 August 2020.
Kenya's Constitutional Crisis: A Legacy of Colonialism and Corruption ¶
Since attaining independence in 1963, Kenya has been plagued by a constitutional crisis that has lasted over four decades. The rule of law has been sabotaged, subverted, incapacitated, undermined, and alienated at every turn.
The colonial administration's indirect rule, which kept governance at a distance and centralized power, has had a lasting impact on Kenya's post-independence regimes. These regimes have emulated the autocratic tendencies of the colonial administrators, maintaining the same untouchability and unaccountability.
When Kenya gained independence, it inherited and worsened the colonial crisis of governance, with dire infringements on human rights and calamitous consequences on its economy. The state has been ethnicized by political ethnic barons, which continues to mobilize society around ethnic lines while deeply enmeshed in high-level corruption and impunity.
Despite adopting a new Constitution in August 2010, Kenya's post-independence history has continued to undermine its implementation. The new Constitution was approved by an overwhelming 67% of Kenyan voters, but disagreements and impediments to its implementation continue to threaten its application.
The process of implementation has been sidestepped, emasculated, undercut, diluted, destabilized, and has demoralized the public at large. The failure to develop a policy based on robust analysis of the process of implementation and the challenges experienced has several consequences, including institutional conflicts over mandate and general turf wars at different levels of government.
Both the National Assembly and the Senate have passed laws that tend to undermine the Constitution, with the National Assembly passing laws that go against the text and spirit of the Constitution. There is also an absence of sufficient and meaningful public participation in making key decisions at both the national and county government level.
The failure to effectively unbundle functions has created confusion with regard to devolved functions and their resources, leading to a court case on the division of health functions between the two levels of government. Conflicts have been a common feature of inter-governmental relations, undermining the principles of the cooperative government envisaged in the Constitution.
There are certain practices of governance that negate the values and principles enshrined in the Constitution, including corruption and lack of prudence in the use of public funds. The lack of effective enforcement of the law to constrain behavior that threatens erosion of the principles of the Constitution has also been a major challenge.
