Today we celebrate the fifth year since we promulgated the new Constitution. This day also marks the end of the period provided for in Article 261 for the enactment of legislation required by the Constitution for its effective implementation.
On this day, if all had gone well, we should have been able to say, like the French, C’est fait,—it is done. Unfortunately, we mark this day with the failure of the Jubilee government to enact the remaining legislation within the prescribed period.
The clouds of cynicism that formed from Jubilee’s resistance to our new constitutional dispensation have rained today and soaked our commemorative parade.
But we shall not allow this to dampen our spirits. We have come from far. There were days when the future looked really bleak. There were times you had to be an incorrigible optimist to think that a day like this would come. But we have always been a nation of optimists, not given to giving up. And we have many things to show for it.
Looking at the Constitution, we have many things to keep us hopeful that the days of injustice, inequality and inequity are soon coming to a close.
We are yet to implement Chapter Six of the Constitution which seeks to ensure leadership demonstrates respect for the people; brings honour to the nation and dignity to the office and promotes public confidence in the integrity of the office.
We are yet to pay attention to this chapter’s requirement that State officers serve the people, rather than rule them. We are yet to effect the prescribed guiding principles of leadership including objectivity and impartiality in decision making, and ensuring that decisions are not influenced by nepotism, favouritism and other improper motives or corrupt practices.
But Chapter Six remains in the book. It holds the promise that one day we shall enforce on our leaders that they act in a manner consistent with the purposes and objects of the Constitution.
Let not our spirits be dampened by the fact that though the Constitution requires Executive authority to be executed in a manner compatible with the principle of service to the people of Kenya and for their well being and benefit, the current President continues to explore opportunity to re-establish an imperial presidency through “road-side” decrees, legislation through veto, subsuming public interests to personal commercial interests and a contemptuous disregard of constitutional provisions.
Let our hopes not be crushed by the continued assault on devolution by the National government, through a deliberate scheme to emasculate governors and County governments, and execute a criminal subversion of the will of the people of Kenya.
The government has started a process of removing and compromising the gains made in the new Constitution with regard to land. Jubilee is taking us back to the old regime of colonial statutes that brought about chaos and injustices to the land sector.
Both the Community Land Bill, 2015 and the amendments to the Land Act contravene the Constitution and invalidate the National Land Policy.
The Community Land Bill, 2015 gives the Cabinet Secretary enormous and extensive powers without any residual or supervisory functions given to the communities, the county governments and the National Land Commission.
The powers being given to the Cabinet secretary include documentation, mapping and development of the inventory of community land which includes community land claims and physical demarcation of land and delineation of boundaries.
The CS will be making rules for the conduct of adjudication exercises, appoint adjudication officers and determine the land to be adjudicated.
The CS will also make regulations prescribing the manner and procedure for registration of community land. The National government is giving itself a major and significant role in the appointment of officers and regulation of community land use and planning without the participation of County governments, affected communities and the National Land Commission.
The old Commissioner of Lands is being sneaked back by another name. This is just another of the many assaults our Constitution is being subjected to just when we should have been saying C’est fait. All the same, let us celebrate and dance in this rain.
Let this rain rejuvenate and refresh us. It is said that the price of freedom is eternal vigilance. Let this rain water the roots of our vigilance. The road we have travelled has been so long and so bumpy that the one ahead instills no fear. I personally feel upbeat.
We have moved from the era where the Constitution was in the hands of a ruthless clique to the current day when it is in our hands. Let us commit ourselves to the obligation placed on all of us by Article 3(1) of the Constitution to “respect, uphold and defend this constitution”.
Because the future of this constitution is in our hands, we must employ every available legal mechanism and action to prevent its subjugation to the will of a profoundly immoral and wicked status quo.
Where it has gaps that can be exploited, let us seal them before the floods from the rain of Jubilee’s malevolence towards the new Constitution seep through the cracks and capsize this ark of our salvation. That is why we in Cord started the Okoa Kenya popular initiative to amend the Constitution.
In the next few weeks, we shall be submitting to the Independent Electoral and Boundaries Commission our proposals on how we must seal the holes we have identified on matters of devolution, land, inclusivity and elections.
We are also drafting the Devolution Laws (Miscellaneous Amendments) Bill 2015 to secure Devolution. This could have been a better day, but today, let’s celebrate! The writer is Kenya’s former Prime Minister and Cord leader