Kenya: New Constitution Faces Implementation Challenges

Nairobi, Kenya---Even though Kenya has set example in East Africa and the continent for adopting a new constitution with one of the most liberal bill of rights, the implementation process is facing numerous challenges.

One of the leading challenges is that most of the MPs are not conversant with the many issues in the new constitution and are misinterpreting some clauses, either through ignorance or deliberately to serve their political interests. This is trickling down to the masses.

Notably, those who were opposed to a new constitution but are in government are still trying to sabotage the implementation. They are using their powerful positions to try and influence the bills that are being drafted, so that they can still insert some elements of the old constitution that favour them.

The best example is the Provincial Administration. Some powerful forces within government are trying to sneak in the Provincial Administration as a separate entity, yet the new constitution says they will be restructured and operate under the counties.

The second challenge is the issue of how to restructure the Judiciary. It is common knowledge that the past three regimes have used the Judiciary to further their political agenda by appointing judges friendly to their cause. The 2004 “Judicial Surgery” failed to live up to its billing and there are fears that the pending judicial reforms might also be interfered with for political expedience.

The Kenyan public is yet to regain faith in the Judiciary, even with the coming of a new constitution. The Judiciary is one of the reasons why the post-election violence erupted as the aggrieved were not ready to go to court because they could not trust a Judiciary appointed by their opponents.

The appointment of some of the judges was influenced by politicians still in powerful positions. The same politicians might try to influence the retention of their friends in the Judiciary.

The police reforms or the general Security Sector Reform (SSR) is not going to be easy because politicians have always used the police to do their bidding. Some police bosses are deeply connected with criminal network that has made them rich.

The police have for years been deeply involved with criminal elements, both in the crime world and politics. The old political arena was a goldmine for the police. There is still confusion how the centre will relate with the counties in terms of security, finance and governance.

The other challenge is the new counties, especially on the management of devolved resources. Being new, the counties will be facing financial and logistical challenges, especially how to raise revenue. The Revenue Allocation Commission will also face a lot of challenges with counties scrambling for more funds and will hard pressed to explain why they would give more funds to one county and not to another.

And finally, the politics of 2012 is also likely to interfere with implementation. Politicians are already focusing on their re-election instead of crafting good bills. Presidential candidates in 2012 are also interested only in areas where they think they will reap maximum benefits.

The scenario now is that politicians are trying to gain vantage position ahead of 2012, by trying to fix themselves in committees that will control the implementation process with the hope that they can use these committees to save their own careers.

Nobody is sure whether to concentrate on being a member of parliament or go down to the grassroots where the power is likely to be. This king of anxiety in the country’s body politic is having a negative impact on the smooth flow of the implementation process.