This archive report was first published on 25 August 2020.
Kenya's Constitutional Crisis: A Legacy of Colonialism and Corruption ¶
Since gaining independence in 1963, Kenya has struggled with a constitutional crisis that has lasted over four decades. The country's post-colonial history has been marked by a legacy of colonialism and corruption, which has undermined the rule of law and perpetuated authoritarianism.
The colonial administration's system of indirect rule, which kept governance at a distance and centralized power, was adopted by Kenya's post-independence regimes. This led to the emasculation of the Constitution and the perpetuation of corruption, which has had calamitous consequences on the economy.
Kenya's post-colonial presidents have maintained the same untouchability and unaccountability as their colonial predecessors, perpetuating a culture of impunity and corruption. The country has been polarized along ethnic lines, and the economy has suffered as a result of high-level corruption and poor governance.
However, in 2010, Kenya adopted a new Constitution, which aimed to break away from the past and build a new society. The Constitution provided opportunities for better development and the realization of the aspirations of the people. It was approved by an overwhelming 67% of Kenyan voters, but its implementation has been hindered by various factors.
The implementation of the Constitution has been sidestepped, and the public has been demoralized. Laws have been developed without a policy to guide their implementation, and many of the laws required to facilitate effective implementation of the Constitution have been enacted, but they are too weak to further the letter and spirit of the Constitution.
Institutional conflicts over the mandate and turf wars at different levels of government have characterized implementation thus far. Dispute resolution has not been effective, and there is a lack of trust, suspicion, and mistrust between the two levels of government and between the many players involved in implementation.
Both the National Assembly and the Senate have passed laws that tend to undermine the Constitution. The National Assembly has passed laws that go against the text and spirit of the Constitution, such as the CDF, Security law, Finance law, media and communication law, among others, which have been declared unconstitutional by the courts.
There is an absence of sufficient and meaningful public participation in making key decisions at both the national and county government level. Both levels of government are not providing sufficient and meaningful opportunities for people to effectively participate in decision-making.
The failure to effectively unbundle functions has created confusion regarding devolved functions and their resources. This confusion has led 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, and there has been minimal dialogue on how to address the conflicts in their relations. This has undermined the principles of the cooperative government envisaged in the Constitution.
The Provincial Administration restructuring process is not yet complete, and despite sentiments that the administration is already restructured, the fact that the Ministry of Interior felt the need to develop a policy to guide the process is evidence that there are pending issues regarding the restructuring.
There are certain practices of governance that negate the values and principles enshrined in the Constitution; they tend to claw back the gains made. Corruption and lack of prudence in the use of public funds are on the increase, and there is a lack of effective enforcement of the law to constrain behavior that threatens the erosion of the principles of the Constitution.
Published on August 25, 2020, by Kenyandigest
