Sweet sixteen is a metaphor for the invisible line between childhood and adulthood. In the United States and Canada, it refers to the 16th birthday, when a teenager crosses the Rubicon and starts tasting some privileges of adulthood – a driver’s licence, a first job and even dating without intrusive adult supervision.
Last week, on August 27, Kenya had its own Sweet Sixteen moment. We marked the 16th birthday of the 2010 Constitution, the document that formally turned Kenya into a political democracy. Kenyans abandoned the imperial constitution of the first republic, with its many gerrymanders, and embraced modern democratic constitutionalism – at least on paper.
I have said before and repeat here, that before 2010 Kenya was not a democracy. I know this is debatable. But in my book, it’s not even close.
First, the Constitution adopted at independence in 1964 was an imposition by the British monarchy, written in London under the watchful eyes of the empire. The British presented it to Kenyans – who were its subjects – as a take-it-or-leave-it document. Kenyans had to accept it to become “independent” or reject it and remain under British vassalage. The emergent Kenyan elite under Mzee Jomo Kenyatta and Jaramogi Oginga Odinga decided to take the half loaf and return to Nairobi to sort out the partial birth later.
That fateful decision still haunts Kenya. In 1964, after a year of British tutelage, Mzee Kenyatta took off the marital gown of Prime Minister and declared himself President, cutting the direct umbilical cord from the UK. Between then and 1966, he sharply mutilated the imposed constitution, taking away remaining vestiges of paper democracy. He quickly consolidated power and created a state defined by despotic personal rule. He abolished decentralised power structures and any semblance of independent institutions. He fell out with Vice-President Odinga and banned his Kenya People’s Union.
Thereafter, Kenya became a de facto one-party state under Kikuyu hegemony. Mr Kenyatta became a virtual king. This repression persisted until 1978, when Mzee Kenyatta was succeeded by Daniel arap Moi, who ruled with an iron fist under the KANU one-party state until 1991, when he was forced to cede to multipartyism, had his term limited and eventually left office in 2002. Mr Moi’s 24-year reign was a democratic desert. After 1991, even with open elections, he ruled as an imperial president with a captive judiciary and a noisy but ineffective legislature. The period between 2002 and 2010, when Kenyans adopted the extant constitution, brought more freedoms, although President Mwai Kibaki still ruled with a heavy hand. The 2010 Constitution finally untethered Kenyans from the imperium of personal rule.
Kenyans have never been freer than they are today under the 2010 Constitution. Equally important, they realise their society is bogged down in political quagmire. While the 2010 Constitution brought superior norms and institutions, it has inexplicably created intractable challenges.
Killer of Kenya’s democracy
The Judiciary is more independent and the Legislature has room to be free of Executive manipulation and fiat. But the republic remains unhealthy because of structural deficits, cultural “software” and governance challenges.
Constitutionalism has not taken root for several reasons. The governance structure and footprint of the county system are top-heavy and unwieldy. Kenya’s central and devolved governments are bloated. Forty-seven county governments, with county assemblies, are economically unsustainable. They are also largely tribal, impeding the consolidation of a national zeitgeist. They drain scarce resources. Over-decentralisation is killing Kenya.
The wage bill is unjustifiable. Over-representation at the county and national levels is illogical and antithetical to good government, especially because it creates a feeding trough for unproductive political and bureaucratic elites.
The killer of Kenya’s democracy at the Sweet Sixteen inflection point is corruption. This monster is the most toxic cancer upon the land. It has paralysed the three arms of government and still now resides in Kenya’s bone marrow. Even independent institutions, including constitutional commissions, are stations for a rent-seeking elite. This paralysis threatens Kenya’s future. It is a miracle that, despite these structural and normative challenges, President Ruto has managed to create a vibrant economy, a favourable investment climate and far-reaching infrastructure projects. He’s stabilised a failing economy and restored Kenya’s respectability abroad. We are out of the woods. Off to Singapore!
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York; @makaumutua.
