How Presidents have led onslaught against the Constitution

On the very day Kenya was promulgating its new constitutional order after 47 years of living off a colonialist-mediated one, its original sin was contemporaneously proclaimed.

The diminutive, stocky and bow-legged President of the Sudan at the time, Omar Bashir, walked into the promulgation grounds, escorted by then Cabinet Minister Najib Balala at the invitation of President Mwai Kibaki’s government.

Bashir walked with Balala into Uhuru Park with a millstone around his neck. A month before, on July 12, 2010, the International Criminal Court (ICC) had issued the second warrant of arrest against Bashir over three counts of genocide committed in Sudan.

The first international warrant for Bashir’s arrest had been issued on March 4, 2009 over five counts of crimes against humanity committed in the Darfur region of his country.

The ICC had circulated widely the request of all member states, including Kenya, to arrest and surrender President Bashir to it. Under Article 2 of the Constitution Bashir was arriving to celebrate, general rules of international law as well as any treaty or convention ratified by Kenya, shall form part of the law of Kenya.

Despite the presence of hordes of policemen at the venue, Bashir was not arrested, prompting the International Commission of Jurists (ICJ-Kenya) to move to court to obtain an order to arrest him.

Going by the Augustinian doctrine on the original sin, Kenya’s 2010 Constitution was thus born sinful, with an in-built urge to disobey what it set out to achieve. Neither the President who inaugurated it nor the two who came after him were inclined to fully roll it out to the benefit of the country.

While Kibaki had the benefit of a transitional clause to operate in, he also had an inherent duty to promote the spirit of the new order which was to fully roll out after the 2013 general election.

As an outgoing President, Kibaki had the best chance to prepare the country to embrace the new order, devoid of any special interest. He failed to seize the moment and in fact undertook actions which undermined the take-off.

In January of 2011, President Kibaki unilaterally nominated the new Chief Justice, Attorney General, and Director of Public Prosecution, key offices in the new constitutional dispensation.

The appointments were guided by the transitional clauses of the Constitution and the National Accord. They required the President to consult with the Prime Minister before presenting the names to the National Assembly for approval.

President Kibaki did not consult Prime Minister Raila Odinga, who publicly rejected the nominations. Kibaki did not attempt to invoke the letter and spirit of the Constitution on national unity, participation of the people, good governance, transparency and accountability.

The whole thing enveloped into an embarrassing episode as the National Assembly and the Judicial Service Commission (JSC) rejected the nominations.

“If the Principals had listened to my advice, we would not be seeing the shenanigans we are now seeing,” the then Minister for Justice and Constitutional Affairs, the late Mutula Kilonzo bemoaned.

Kibaki would go on to make other suspicious moves, including the appointment of 47 county commissioners to shadow the 47 governors, igniting fears of perpetuating the provincial administration.

The appointment of the inaugural National Lands Commission under President Kibaki was equally mired in controversy, leading to long delays and court cases to enforce what was obvious.

“The failure by the President to appoint the chairperson and members of the Commission undermines the value of good governance in that institution intended to govern land law and prepare policy,” the late Justice David Majanja ruled on February 4, 2012.

Kibaki’s other main undoing in roll-out of the new Constitution is a matter which remains a major indictment on the country to this date. While the passage of a very weak Leadership and Integrity Act was much more a function of the National Assembly, the President had an important lever.

The subsequent affirmation of a lower threshold of integrity by the High Court sealed its fate, leading to cartoonist Gado Mwampendwa likening the whole Chapter Six of the Constitution on leadership and integrity to a mere toilet paper for State officers.

Using the low standards set up by Parliament, endorsed by Executive and affirmed by the Judiciary, everybody in Kenya, including the worst crooks, easily pass the integrity test for any public office.

President Kibaki handed the torch to President Uhuru Kenyatta in 2013. As the first elected President under the 2010 constitution, a lot of responsibility fell on President Kenyatta to breathe life into the new order.

The new President would instead go on to set new records in so far as undermining the spirit and letter of the law was concerned. For the longest, and until he retired, President Kenyatta lived in denial that Kenya had drastically changed in 2010.

His first act as a President was to nominate and appoint a Cabinet. He failed at the first instance by naming a Cabinet which violated the principle that “not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

For a country endowed with as many educated women as men, it was incomprehensible how the President could not get enough women to meet the gender threshold. He soon earned the reprimand which would characterise the rest of his term, eventually earning him the “Mr Null and Void” moniker.

“A declaration is hereby issued that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a Cabinet that does not meet the two third gender requirement,” the late Justice Joseph Onguto declared.

President Kenyatta went on to emasculate Parliament, weakening important constitutional safeguards for people representation and oversight. Parliament, itself illegally constituted, was transformed into a rubber stamp for the Executive with already-too-willing Speakers and members.

The emasculated Parliament passed controversial security amendment bills which violated freedom of expression, freedom of media, and important internationally recognized principles such as principle of non-refoulement for refugees.

They would later be declared unconstitutional by the courts. Through a series of amendments, President Kenyatta reduced the National Police Service Commission into a shell it continues to be to this date, with most of its powers taken away.

Under President Kenyatta, the constitutional commissions and independent offices, including those inherited from the pre-2010 Constitution, suffered enormous political and financial pressures, significantly reducing the efficacy and robustness.

The commissions which under the new Constitution had been fashioned into a fourth arm of government, bringing on board important checks and balances to the traditional arms of government, were equally reduced into shells of sorts.

Laws were enacted to undermine the independence and effectiveness of the Office of Auditor General while underfunding of the Judiciary and political pressure significantly hampered Judicial Service Commission (JSC) operations.

President Kenyatta’s first term ended with his re-election being declared null and void over violations of the law on election. When he was re-elected in the fresh election in 2017, he bounced back with greater vengeance.

The Judiciary which presided over his nullification suffered drastic budget cuts.

In his second term, fundamental freedoms protected by the Constitution suffered immense shocks and reversals. Decisions such as the one which revoked the citizenship status of Miguna Miguna, a former public official in the Prime Minister’s Office, became the order of the day.

Cabinet Secretaries, such as Interior’s Fred Matiang’i, became law unto themselves, ignoring the string of court of orders. Politically driven investigations and prosecutions became the norm rather than the exception.

In January 2018, President Kenyatta “decided” to establish a new office in government, the office of the Chief Administrative Secretary (CAS) in every ministry to play the role of assistant CSs.

The Constitution had not anticipated such a position nor were its processes followed in its creation.

But perhaps the highlight of President Kenyatta’s disregard for the Constitution was his spirited push to amend the law for political expediency.

The Building Bridges Initiative (BBI) took the country by storm with its proposal to reorder the political structure of the country.

As it was wont to, the initiative was stopped by the courts which declared it null and void. This was a significant blow whose ripple effect led to Odinga’s political fall in the 2022 presidential poll.

President William Ruto came into office with a promise of restoring rule of law and promoting constitutionalism. He had been one of the greatest architects of the Constitution during the parliamentary stage in early 2010 but had opted to publicly oppose it when it was offered for vote through a referendum.

However, President Ruto’s promise to uphold the Constitution would soon turn hollow as soon as he “lowered the Bible.” Almost half of the Cabinet he set up came from his and the Deputy President’s regions.

Just like President Kenyatta before him, he did not adhere to the gender threshold in constituting his Cabinet and Principal Secretaries. To further rub it in, President Ruto appointed 50 CASs, in the footsteps of his predecessor.

He had appointed them, and swore them into office, when the courts stopped them from assuming office. His true colours had begun to emerge.

President Ruto also picked up from where President Kenyatta had left in emasculating Parliament. His first budget, 2023/2024 was pummelled through Parliament despite great public disapproval, leading to great disaffection in the republic.

Attempts to repeat the act in 2024/2025 budget led to the “Gen Z protests” which shook his government, leading to a reorganization and fall-out with his Deputy.

The greatest constitutional blot on President Ruto has been his human rights record. Under his reign, fundamental freedoms have suffered immense setbacks with the right to picket, freedom of expression and freedom of assembly suffering the most.

The spectre of State-sanctioned abductions and police killing of protesters has captured public imagination since last year. It has turned out to be one of the most shameful and darkest chapters of the country after the political assassinations of the 60s and 70s, detention without trial of the 80s, and Saba Sabas of the 90s.

President Ruto has also picked up from where President Kenyatta left in formation of parallel governance structures. He has appointed a horde of advisors shadowing substantive CSs, leading many to question his prudence in public resources management.

He has set up numerous task forces to advise on various aspects where substantive institutions or offices are in place. Among these include the taskforce on public debt and the newest one on compensation of the victims of police brutality.

A number of these have been upended by the courts while others have pending cases.

His latest attempt to domicile anti-corruption efforts in his office, away from the Ethics and Anti-Corruption Commission, was stopped by the courts.

He has also been stopped from constructing a church at State House grounds.

Musau is an advocate of the High Court of Kenya