Even at the height of the clamour for constitutional change in the 1990s, very few Kenyans had seen or read the Constitution.
Sometime in 1998, and with some drama and humour, I offered drinks to any patron at the Kenya National Theatre restaurant who could describe what it looked like. No one won the price. This was surprising to me, considering that the restaurant was the regular haunt for intellectuals and artists.
A popular KBC television host of the current affairs programme, ‘Insight’, thought you could only obtain it from the Attorney-General, and would need a heavy cart to carry the volumes.
Amazed that it was a small single volume, he proceeded to feature it in several episodes of his show. And everywhere in the republic, very few had literally seen the constitution, let alone read it.
On Saba Saba day in the same year, a group of Special Branch officers who had come to our Kijabe Street offices to “check on things” were surprised to find dozens of copies of the constitution on my desk. You mean people have access to the constitution, one remarked. He was delighted when I offered him a copy for himself!
This widespread ignorance of the supreme law made President Moi to chide Kenyans, demanding that we point out the clauses we wanted changed!
Part of popular discourse
We have made progress from that time and the Constitution is part of popular discourse among us! It is not unusual for a citizen to make reference to it in one of my barazas.
Still in many quarters, appreciation and implementation is shallow. For instance, bureaucrats at the Ministry of Lands still purport to issue land grants and leases, even though land is vested in the counties. And my friends at the treasury still regard devolution as an irritant.
The late John Michuki once observed that the opposition of the 1990s only demanded constitutional change as a way of getting President Moi out of power. Now that we had President Kibaki, the review was not necessary, he suggested. Today we have the political elite in power supporting changes to it.
The Constitution of Kenya 2010, is the first one enacted by ourselves, for ourselves. All the previous ones were made by or with the help of, the colonialists. Even the 1963 Lancaster Constitution was actually an annex to the Order in Council that granted us independence.
The 1963 constitution contained devolution. White settlers and smaller tribes, fearing domination by Kikuyus and Luos, had insisted on it as a pre-condition for independence. But Kanu dismantled, by financial starvation, the regional governments and assemblies.
Later changes included removal of judges’ security of tenure, abolishment of the Senate in January 1967 and making Kenya a one-party state. Abolishing the Senate was the final blow to the first attempt at devolution. The senators simply moved chambers and became members of the National Assembly!
Just like in 2010, the current constitutional moment presents an opportunity to reflect on and debate the Constitution and what it means for us. This will help entrench constitutionalism and the rule of law.
