The New Constitution was promulgated on August 27th 2010 and was the culmination of 41 years of protests and lobbying. Kenyans celebrated and the world celebrated with us. We finally had achieved what so much had been sacrificed for. Amid all this celebration and the subsequent jaded four years since then, it’s easy to forget why a new constitution was important in the first place.
Let’s start from the beginning. There are quite a number of definitions of a constitution. I will hone in on two. A constitution refers to that assemblage of laws, institutions and customs, derived from certain fixed principles of reason directed to certain fixed objects of public good that compose the general system, according to which the community has agreed to be governed and a constitution is the instrument or law that organizes and manages governance. There are two major types of constitutions: written and unwritten/abstract, which are also further divided down into Rigid and Flexible Constitutions depending on how difficult it is to make changes and Unitary and Federal Constitutions depending on whether power is centralized or decentralized.
A constitution is important for several reasons: it empowers the state, establishes the values and ideals of a nation, gives rights and therefore responsibilities to citizens, lends legitimacy to the state/government, ensures accountability, transparency and responsiveness, ensures wealth distribution for common services that promote individual well being and guarantees checks on authorities by separating their functions and roles. It is therefore quite apparent that a constitution is the engine that makes it possible for a country, especially a democracy, to move forward.
The basic principles of the constitution are:
- Popular sovereignty: Article 1 of the Constitution of Kenya, 2010 provides that all sovereign power belongs to the people of Kenya and shall be exercised in accordance with the constitution either directly or through their democratically elected representatives.
- Limited Government/Constitutionalism: This involves the limitation of the state by the law, with institutions performing their roles according to predetermined and acceptable norms and where individual rights are respected. It implies a balance between the power of the government and the right of the citizens.
- Separation of powers: This allows for the government to be separated into three distinct arms. The Executive, Legislature and Judiciary.
- Judicial review: Article 47 of the constitution provides for the right to fair administrative action that is expeditious, lawful, efficient and reasonable.
- Devolution of power: A process through which powers, functions, responsibilities and resources are transferred from central to local government or other decentralized entities. Article 1(4) of the Constitution of Kenya, 2010 provides that the sovereign power of the people of Kenya is exercised at two levels: national level and the county level.
There have been attempts to water down the constitution and it is therefore important for citizens to understand why the constitution is an important document. Citizens must take advantage of the responsibilities given to them by the constitution and fully participate by taking an interest in the country’s state affairs and processes. We must be proactive and remain vigilant by raising our voices to ask questions and using other lawful ways to keep the state accountable.