Kenya's new constitution brings political change

The country’s politics have changed markedly since the introduction of a new constitution in 2010. The final document, which had been debated in parliament for the greater part of two decades, has ushered in a more decentralised political system and structure that is meant to make the government more democratically accountable and responsive to the needs of citizens. While some issues are still being worked out, the new system of governance is seen by most observers as an improvement.

Reforms

Kenya has undergone two major constitutional reforms since independence in 1963. The first was in 1969 and saw the federal and parliamentary system, with a bicameral legislature, replaced by a unitary, semi-presidential state with a strong presidency and unicameral parliament. The changes also curtailed some of the protections of the bill of rights, and a later amendment in 1982 effectively instituted single-party government.

With the end of the Cold War in the 1990s, popular pressure led to amendments to the constitution, and ultimately a more inclusive and democratic system. In 1992 these changes and external pressure from donor countries led then-President Daniel Arap Moi to allow multi-party elections, which his party ultimately ended up winning. However, since multi-party elections were restored in 1991, many of them have been fraught with tension. The violence that followed the 2007 elections, much of which was related to ethnic tensions, was serious enough that it led to a coalition government and ultimately built crucial support for the adoption of a new constitution, the second major reform in Kenya’s history, which was approved by referendum in 2010.

Political System

The 2010 constitution established a presidential republic in which sovereignty is exercised by the people through democratically elected representatives. Although similar on the surface to the previous system, the 2010 constitution made a number of key changes designed to create a more decentralised political system, particularly with respect to limiting presidential powers, the establishment of a new system of 47 local counties, which replaced eight provinces and 46 districts, and a greater level of oversight over branches and levels of government.

It also created an upper house in the Parliament, the Senate, where county governments have equal representation, and strengthened the separation of powers between the three arms of government – the executive, legislative and judiciary – at the national level. An improved bill of rights that recognises the socio-economic needs of Kenyan citizens was also added. Executive authority is vested in the president, who is both head of state and of government and is elected to a five-year term through universal adult suffrage. To be declared a winner, the individual must win a majority of overall votes and at least 25% of the votes in a majority of the country’s 47 newly created counties.

Presidential Powers

The president is assisted in his duties by a cabinet that consists of ministry heads, which are known as cabinet secretaries. Under the new constitution, the president no longer has the power to appoint and dismiss these officers at will and can only do so with the approval of a majority in the lower house of the legislature. Appointees must also come from outside of parliament, unlike previously, further separating the legislative and executive. When presented with parliamentary legislation, the president can either sign it into law or send it back to the body for further review. Parliament can then either make the suggested changes and resubmit it for approval or override the veto with a two-thirds majority. Presidential terms are five years in length and are limited to two terms. Uhuru Kenyatta, the son of Kenya’s first president, has held the office since 2013.

Legislature

The legislature consists of a lower house, the National Assembly, and an upper house, the Senate, which was added under the 2010 constitution. The former is the primary law-making body of the government and consists of 349 members: 290 members elected from single member constituencies, 47 women elected from each of the counties and 12 members nominated by political parties to represent the interests of youth, persons with disabilities and workers. The latter chamber has 67 members, of which 47 are elected from each county, 16 are women members nominated by the parties, two represent young people and two represent persons with disabilities. Terms for each house last five years. The Senate only has jurisdiction over bills that concern county governments, whereas the National Assembly has authority over all other matters, including spending and taxation.

Judiciary

Judicial reform has been one of the major accomplishments under the new constitution, creating a more independent judiciary that has won the confidence of many Kenyans. At the apex of the new system stands the Supreme Court, which consists of a chief justice, a deputy chief justice and five associate justices, all of whom are nominated by the president from a pre-approved group – which is chosen by an independent body, the Judicial Services Commission – and then voted upon by the National Assembly. The court is the final arbiter in cases involving the constitutionality of statutes and is the only body able to hear and determine disputes relating to presidential elections.

Under the Supreme Court is the Court of Appeal, which consists of a minimum of 12 judges and hears appeals made on matters decided by the lowest superior court, the High Court, which has unlimited jurisdiction in all civil and criminal matters. Under this layer of superior courts is a layer of subordinate ones, mostly magistrate and Islamic courts, known as Kadhi courts. The latter are composed of three judges and decide questions of Muslim law relating to personal status, marriage, divorce or inheritance, so long as both parties profess the Muslim faith and voluntarily submit to their jurisdiction.

Key to this new system is the power of the Judicial Services Commission. Officially tasked with promoting and facilitating the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice, it has far-reaching powers of determining which persons are eligible to be a judge and of investigating judges accused of misconduct. In 2012 the government also set up a new body within the High Court, known as the International Crimes Division, to focus on transnational issues such as money laundering, piracy, human trafficking and organised crime. These changes have helped to restore public confidence in a judiciary that was deeply mistrusted prior to 2010. Indeed, according to polling performed by Gallup, 61% of Kenyans reported having confidence in the judiciary in 2013, compared to only 27% in 2009.

Devolution

The new constitution also fundamentally redefined the relationship between the national government and localities, initiating a process that saw the transfer of certain powers from the national government to 47 newly created local counties, ranging from economic development to health care, education and infrastructure. The rationale for devolution involved several factors, but the two most important ones are empowerment of local government and reducing inequality between regions (see Economy chapter). Until now most of the country’s wealth has been concentrated in its cities, particularly Nairobi, which accounts for about 60% of GDP. This is despite the fact that Kenya is an overwhelmingly rural country, with roughly 75% of the population living outside of urban areas. Indeed, almost half of the country’s land mass, 48.1%, is used by the agricultural sector, mostly on a subsistence or semi-commercial basis.

As a result of this imbalance, public and private services in rural areas lag far behind those found in urban centres. Education, employment prospects and general quality of life also decline the farther one lives from lower urban areas. Health care is a case in point. Rural Kenyans must often go without critical services, given that there is a severe medical staffing shortage outside of urban zones. In fact, according to Transparency International, staffing provisions only reach 20% of requirements in some rural areas. According to World Bank figures, only 5% of infants were delivered at a health care facility in the remote north-eastern Wajir County, whereas more than 80% were delivered in such conditions in the more central Kirinyage County. Moreover, as recently as 2015 only 56.8% of the rural population had access to an improved drinking water source, compared to 81.6% of the urban population.

Mechanism

In a recent brief, the World Bank acknowledged the enormity of devolution and stated, “Kenya’s decentralisation is among the most rapid and ambitious devolution processes going on in the world, with new governance challenges and opportunities as the country builds a new set of county governments from scratch.” While the 2010 constitution laid the groundwork, it was not until the 2013 elections that the plan was actually implemented. The eight provinces, which were largely subordinate to the will of the national government, were replaced with 47 county governments with their own constitutionally mandated powers. Decisions concerning cultural activities, county transport, trade development and regulation, pre-primary education and childcare facilities, county public works and services, agriculture and county health care services, among others, all became the exclusive domain of local government. They were also given the right to levy their own taxes and fees.

Each county government consists of an assembly and an executive, which are both directly elected by their constituents. Funding from the central government is determined by a county’s size in terms of both population and of area, as well as its level of poverty, with the poorest countries receiving priority (see Economy chapter). County governments have autonomy over the design and details of local spending plans, but the national government also ensures fiscal responsibility through the National Treasury, which has oversight over county spending and ensures that they adhere to their plans, as well as broader development goals.

Progress

Although substantial progress has been made under the new policy, there have been growing pains. At a conference on devolution in April 2016, President Kenyatta summed up how far the policy had come since its implementation in 2013. “By the time the FY 2016/17 rolls round, a trillion shillings will have been transferred to the 47 county governments. County governments now make crucial decisions about the health of their people, the roads on which they travel, the taxes they pay and so on.”

Despite this, some have said that the new system of devolution and its added layer of bureaucracy have resulted in new centres of corruption and mismanagement. Raila Odinga, the leader of the coalition of opposition parties, Coalition for Reforms and Democracy, and former prime minister, also spoke at the same conference. He said, “According to the auditor-general, counties are losing billions of much needed money through careless spending and disregard for procurement regulations.” Odinga also faulted the national government for attempting to hold on to powers that rightfully belonged to localities and for delaying payments needed for counties to make good on their development plans, noting that the budget of the national government remained larger than the combined budgets of all 47 counties. While there are debates over the details, devolution is still seen largely as a success. Odinga himself acknowledged the positive aspects of the new approach. He acknowledged that despite serious “roadblocks” and challenges, county government had made impressive progress. “Agriculture, a devolved function, has re-emerged as the driver of the economy in the last two years,” he said. “Health care, another devolved function, has recorded tremendous progress despite funding and staffing problems.” Only time will tell how the new system continues to develop, and whether it ultimately brings about greater equality or not.

Parties & Elections

The 2013 elections brought to power three centrist parties. The National Assembly was divided between the Orange Democratic Movement, which won 96 seats; the National Alliance, which gained 89 seats; and the United Republic Party with 75 seats. The result was replicated in the Senate, where the Orange Democratic Movement and the National Alliance received 11 seats and the United Republic Party received nine. Kenyatta won the presidential election with around 50% of the vote. As he received more than half of all votes cast, he avoided a run off with his opponent, Odinga, who won 43.7% of the vote. A coalition of opposition parties contested the election results, but the matter was swiftly arbitrated and decided on by the Supreme Court. The next round of elections is scheduled for August 2017.

Outlook

Kenya’s political scene is much more stable and robust than it was a decade ago, although the new constitutional system is still very much a work in progress. The rollout of the more constrained executive, the new upper house, a more independent judiciary and the new local governments has at times been challenging, and on occasion old weaknesses reappear. Poverty is still an issue, and a majority of rural Kenyans have a much more difficult life than their urban compatriots. Health care, educational facilities and infrastructure are improving in these areas, but still lag behind those found in cities. Despite efforts by the Kenyatta administration to tackle a range of issues such as money laundering and bribery, corruption is still endemic. Security is also a concern, following recent terrorist incidents such as the 2013 shootings at the Westgate Mall. This being said, real progress has been made since the violence and political instability of 2007, and with the economy still seeing comparatively high growth rates, the outlook is very encouraging.