By BEN NYABIRA

It was a captivating, warm and lively evening at the largest informal settlement in Kenya. The event was the final one of the 2018 Samosa Festival which focused on the Constitution of Kenya 2010 against the backdrop of recent calls for its review. The event, on 11 July at the Kibera Town Centre (KTC) between 6:30 and 8:30pm, focused on questions such as what the people understand about the Constitution, what their role is in its implementation and what they can do to localize it. The participants were also allowed to ask other governance questions.

The participants were mainly young people that included residents of Kibera, youth leaders, community leaders, government officials and people from the civil society. Some constitutional experts such as Prof. Yash Pal Ghai and Jill Cottrell Ghai were also in attendance. The panelists were constitutional and governance experts: George Kegoro, the Executive Director of the Kenya Human Rights Commission (KHRC); Peter Kiama, the Executive Director of the Independent Medical Legal Unit (IMLU); and Ben Nyabira, a Programme Officer at Katiba Institute. The discussions were moderated by Nanjala Nyabola, a Kenyan writer focusing on the legal and socio-political dimensions of conflict in Africa. The event was sponsored by the KHRC, The Institute for Social Accountability (TISA) and IMLU.

Each of the panelists made some introductory remarks from his own perspective, followed by a plenary session where the audience were given an opportunity to ask questions and make other contributions which were responded to by the panelists, before the panelists made some final remarks.

Opening remarks by the panelists

The panelists painted a renewed sense of hope in the country as a result of the Constitution of Kenya 2010. They contrasted the social-economic and political situation in Kenya before and after the promulgation of the Constitution. One of the areas, according to the panelists, that has witnessed some transformation is ethnic cohesion in some parts of the country. Another example is on the allocation of government resources. In the past, it was said, the people who enjoyed good public amenities such as good roads and electricity were mostly those in government leadership positions. Now, partly because the Constitution requires greater public scrutiny of government policies, budgets and their implementation, among other reasons, proportionately more people are increasingly getting access to those services and amenities.

Understanding of the Constitution by the Audience

A few people in the audience were very knowledgeable about the constitution. Many people seemed to think of the Constitution primarily as an instrument that is supposed to protect their rights, which may indeed be the way that many people really experience the constitution. There were rather contradictory views on whether it has actually managed to do that. Most felt that the constitution can protect them more but that its full potential has not been fully realised. It was, however, fascinating to hear them use the language of protection by the constitution. Listening, one had the sense that the people had been exposed to exploitation and unfair treatment by people in authority and other (for various reasons) powerful people and that the promulgation of the constitution came to them as a revelation of their rights with the potential to untie them from that burden. In fact, the many young people were extremely angry with the government for the way it governs, favours their friends, and the rampant corruption.   

Other participants said that the constitution empowers them, which is also another way of saying that the constitution is supposed to serve the common people and protect them from those more powerful than them.

While majority of the participants showed optimism about the constitution of Kenya 2010, some had reservations on whether the constitution has helped them. Quite a number were calling for civic education, and said that the constitution would only make sense if people understood it. Even though the vast majority of Kenyans voted for the constitution in 2010, they did not know what the constitution had for them. Some also said that the new constitution has particularly been helpful to women, referring to the push for greater women participation, than to men.

Citizens’ role in the implementation of the constitution

When asked what their role is in the implementation of the constitution, several people insisted that it needs to be made simpler so that common citizens can understand it more easily. Realizing that the citizens needed to take an active role if they are to understand the constitution, the panelists gave them some advice on how they can go about understanding the constitution and contributing to its implementation. They first made them understand that there is no one person that has a full understanding of the constitution at any one time and that many provisions of the constitution are subject to interpretation. The participants were told that they have a role in influencing the interpretation that various provisions of the constitution can take such that they can take the most just interpretation. They were, therefore, advised not to wait until they master the whole constitution to begin engaging. They were encouraged to look at their surroundings to identify problems and demand that something be done to solve them by the people in authority and that they be involved appropriately. They were reminded that the reason the government exists is to help address the common societal problems hence by looking at their surroundings they can determine whether that government and the constitution that it is operating under is serving them well. They were further encouraged to organise themselves and demand action to solve problems. The panelists noted that while the government has officers paid to ensure that the executive does its job well, the people have a role to play in changing the entire society. If they don’t change, and take this responsibility seriously, there will be little progress because the people will continue electing irresponsible representatives and the transformation would never be achieved. Besides, the people are the ultimate oversight institutions hence should represent all the good that they desire to see in those in authority.

Peaceful demonstrations and police brutality

Being an area well known for leading political demonstrations, one would expect a question relating to demonstrations and they did not disappoint. The people wanted to know what the right to peaceful demonstrations entails in light of the police brutality during many recent demonstrations. The panelists explained to them that their right to demonstrate peaceably and unarmed is inherent and thus cannot be taken from them. They explained to them that the law actually requires organisers of a demonstration to notify the police on their plans so that the police can prepare to provide security, clear the route and as much as possible limit the inconvenience for other citizens. However, many people consider that the requirement of seeking permission is too great an interference with the right, and they would simply notify the police. It was also explained that sometimes it is impossible to notify the police because some demonstrations may be spontaneous in response to a certain event. In that case, people do not have a duty to notify the police since there is no time to do that and the people are acting independently without any organization. But there is a risk of being accused with holding an illegal demonstration. Most rights under the constitution―including that to demonstrate―can be limited by law. But that limitation should be reasonable, and no more than is needed to protect some valid purpose, like public safety. The lack of notification should not automatically translate to outlawing of a demonstration unless the demonstrators are armed and not peaceful. If something bad happens in the course of the demonstration, which could have been prevented had the police been notified, those responsible for the demonstration might be held accountable for the damage that may result. The people were, however, advised that when faced with a risk of loss of life in a demonstration, the best course is probably to retreat and avoid losing life for demonstrating.    

Oversight by MPs and MCAs

Some comments indicated that some people have not adequately understood the structure of government and the role of various institutions. Several people observed that they tend to see the results of the funds given to the Members of Parliament (MPs) and the Members of the County Assembly (MCAs) and not much for the funds allocated to the Executive at either level. They, therefore, called for allocation of more funds to MPs and MCAs. The panelists informed them that when the executive fails to do their work well, the MPs and the MCAs are partly to blame since they are supposed to oversee the executive. They should address the shortcomings of the executive. The people, too, ought to familiarise themselves with promised projects (including using the right of access to information under the constitution). This will make it easier to hold both the executive to account and members of Parliament and county assemblies for failing to perform their supervisory functions.

The forum ended on a high note with the participants sharing tea and samosas and getting to know each other better.

This article is republished by The Youth Café courtesy of Ben Nyabira, and Awaaz Magazine. Additional input added by Kelvin Kiprotich.