Decades Of Assaults On Power Separation Has Left Kenya A Fractious Legacy

The Rule of Law stands at the center of Kenya’s democratization. This can be seen in the implementation of the 2010 constitution. The supreme law that was realized after a long struggle, provided for a vertical and horizontal checks and balances. Through research, one can notice a crony of reactionary political who are beneficiaries of the one party autocracy which ended in 1991, developing means and ways that undermines these checks and balances. They do so by creating leakages in the legislature, judiciary, office of the Attorney General and independent oversight bodies. Even county governments who happens to be the second tier of government also face interference including militarization by President Uhuru Kenyatta who is so much inclined to centralizing power. Throughout the one-party dictatorship of Former president Jomo Kenyatta and then Daniel Moi, arbitrary amendments and disregard for the founding constitution that was in place at that time also know as the Lancaster Constitution. The constitution was rooted with impunity and a disregard for the rule of law as offenders of the rule of law go without sanction. This placed the country on a dangerous path of tribal acrimony, institutionalized impunity and obviously, state violence.

Then came the amendment of the old constitution which was self-serving and scornful of the doctrine of separation of power. The then President, Kenyatta (1963-1978) signed into law 13 fundamental amendments to consolidate power in the executive. His successor, Daniel Moi(1978-2002) follow in his footsteps as he abolished multiparty thus containing the political space further. Another of his amendments removed the tenure of judges. This went against judicial independence by placing the judiciary under executive control. In the last decade, Kenta has made progress towards democratization particularly in the aftermath of the violently disrupted elections in 2007. That election exposed the country’s fragile democracy. It also underscored the indispensability of a ruler based politics forcing erstwhile political rivals to close ranks in the enactment of the 2010 constitution.

Former President Mwai Kibaki smiling as he was handed the new constitution document by Former Attorney General, Amos Wako in 2010
Source: TonyKanumba/AFP/gettyimages.com

Subsequent elections have not affirmed Kenyans’ confidence in participatory democracy. In each of the three elections held under the 2010 constitution, bigotry and fraud upstaged policy. Elections held in 2013, and twice in 2017, were marred by boycotts, violence and rigging.
A prerequisite for Kenya’s democratic renaissance is leadership that is immersed in the national values that are contained in the constitution. Kenyan politicians, beginning with Kenyatta, must submit to constitutionalism – a morally binding fidelity to the rule of law – to infuse trust in the society and confidence in state institutions. The current political climate does not provide much room for optimism since rogue politicians are not sanctioned. This has led to endemic impunity.
But there is a glimmer of hope amid the cynicism. Chief Justice David Maraga has unstintingly asserted the sanctity of the constitution with a remarkable conviction. He recently condemned the president for disobeying court orders and treating the judiciary as if it were an appendage of the executive. The constitution is not responsible for Kenya’s fractious politics and state excesses. Impunity is. Kenya’s democratic gains must be safeguarded

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