After the electric promulgation of our new Constitution, we are now faced with the true challenge of constitution-making: implementation. This is the more difficult challenge and the true determinant of how the future will be under the new Constitution.
There are two main programmes through which the new Constitution will be implemented. The first is the promulgation of new legislation that will provide the infrastructure through which it will operate.
The second is the appointment of implementing personnel. These are the people to whom we shall entrust the obligation of ensuring the necessary initiatives are taken.
We could make mistakes in drafting the many laws prescribed for enactment. We could delay in promulgating the new laws within the periods required. And we can recover from the mistakes and delays. But we ca never recover from entrusting the wrong people with the implementation.
Let’s take our minds back in time and ask ourselves why we have needed this Second Republic. Why didn’t the First Republic deliver? In my opinion, the First Republic failed for the same reasons why, if we do not do it right this time, we shall need a third one – the implementation of the Independence Constitution was entrusted on the wrong people.
In implementing our new Constitution, there are three types of people we must be wary of. The first are the counter revolutionaries. These are people who did not believe the struggle, and may have in fact, fought against it. They can never accept the new order and in fact, spend the rest of their lives trying to undo the gains of the struggle.
After independence in 1963, those who had collaborated with the colonialists in fighting against independence assumed leadership positions alongside the freedom fighters. While seated in the inside, they started dismantling the structures on which a new order was to be built.
They refused to implement provisions on the Counties, frustrated Senate and began amending the Constitution. In six years, they had totally dismantled the basic foundations of the First Republic.
The second type of character to be avoided is the irresponsible reformer. These are the people who are so passionate about reform that they become so narrow-minded and are unable to address themselves on other issue on which a successful reform programme must be based.
The third person to avoid is the mediocre. This is a well-intentioned supporter of the new order but lacks the imagination to put into life the dream of the Constitution. He lacks the brilliance to merge the promise and the reality without losing the dream. It is easy to guard ourselves from counter-revolutionaries and irresponsible reformers because they are easy to identify. Usually, they are the former protagonists of the struggle and visible from the extreme positions they held.
The mediocre, however is not easily identifiable. But he is the most dangerous because he works his way into a position of responsibility and by the time we realise he cannot deliver, the people are already fed-up with the promise and want a new Republic.
These three types of people are the ones who destroyed the First Republic after 1963. And they could destroy the Second unless we are vigilant in guarding the gains of our small revolution. Luckily, there are indicators by which we can tell if we are at risk of being overtaken by reactionaries.
One way is by looking at the composition of the implementation committees and commissions. These are the preferred hiding places for counter-revolutionaries where they can do damage to the country’s dreams without incurring personal accountability.
The first indicator is already flashing. The Cabinet has appointed a committee to advise on Section 77 (2) of the Constitution that bars state officers from holding office in political parties. That section is quite unambiguous and does not need interpretation. All state officers must immediately resign their political party positions. But while the committee is considering this matter, do you expect anyone to resign? Think about it.
A second indicator is the appointment of mediocre personnel. Kenya has a pool of “highly qualified” trusted and proven people who can be relied on “never to deliver”. In transitional times, they are greatly sought after by anti-reformers who then trick reformers into appointing these mediocrities as heads of critical sectors. Invariably, nothing ever changes.
A third indicator is conservative legislation. While the Constitution is very liberal and tries to extend the rights of the people to the greatest possible stretch, Parliamentary legislation can cramp down on this liberal legacy and reverse any gains we have made in the Constitution. It is possible to make an Act of Parliament restrict a Constitution without having to contradict it.
A fourth indicator is constitutional litigation. The Constitution is a law and ultimately it is enforced through judicial decisions. It is the Judiciary that restricts or expands the effect of constitutional provisions.
We must be vigilant over the Judiciary vetting mechanism and the people we put in charge. We must be wary of harmless looking constitutional cases filed by harmless sounding individuals seeking overly-elastic judicial pronouncements. It is in one of these cases that confusion will be sown, and implementation of the Constitution frustrated.