Direct sovereignty was betrayed at Bomas, hence the current woes

The Bomas National Constitutional Conference promised a new social contract, one that would dismantle centralised power and usher in devolution to empower citizens.

Yet, that promise was betrayed by the very leaders entrusted to deliver it — 222 Members of Parliament among the 609 delegates. Their failure to represent their constituents, coupled with self-serving motives, sowed the seeds of Kenya’s ongoing governance woes: weak public participation, legislative discord and fragile devolution.

The path forward demands a radical reimagining — a National Constitutional Conference grounded in direct sovereignty at the ward level, where citizens, not elected proxies, shape our nation’s future. The betrayal began with a fundamental lapse: MPs arrived at Bomas without documented evidence of consultations with their constituents.

Unlike lawyers who secure written briefs before court, these delegates assumed their elected status automatically reflected the people’s general will. This presumption, as scholars Jill Cottrell and Yash Pal Ghai noted, allowed elite interests to dominate. This original sin undermines the legitimacy of the process and explains the persistent deficits in public participation today.

Worse still, MPs used their numerical dominance to carve out parliamentary roles with selfishness, not statesmanship. Those eyeing Senate seats pushed for its supremacy, while others defended the National Assembly’s primacy. This power struggle laid the groundwork for the inter-house conflicts we see now—gridlocks over bills like the Division of Revenue, which the Supreme Court in 2013 partially struck down.

The 2018 Finance Bill, ruled unconstitutional for inadequate public input, further illustrates how these early missteps continue to destabilise governance. By prioritising personal ambitions over national interest, MPs ensured that legislative dysfunction would be Bomas’ enduring legacy.

The most glaring failure, however, was the neglect of devolution’s fiscal foundation. The 2010 Constitution, born from Bomas’ ashes, mandates at least 15 per cent of national revenue for counties. Yet, annual disputes over revenue sharing—marked by Senate standoffs and court battles—reveal a structural flaw traceable to 2004.

MPs failed to advocate for robust safeguards for county funds, leaving devolution vulnerable to national politics. The Parliamentary Select Committee (PSC) exacerbated this by stripping the Bomas Draft of provisions for equitable resource distribution. The result? Counties struggle with delayed funds and mounting debts, eroding trust in devolution. Had MPs prioritised the nation’s future, we might have a resilient fiscal framework, not perennial crises.

These betrayals—representation without accountability, legislative self-interest, and fiscal neglect—demand a reckoning. I foresee a day when Kenya’s governance frustrations, evident in protests and judicial interventions, will necessitate another National Constitutional Conference. When that day comes, we must reject the flawed model of 2004.

Instead, I propose a conference rooted in direct sovereignty at the ward level, where every citizen submits their views, unfiltered by elected leaders. MPs, if they participate, would do so as individuals, stripped of incumbency’s influence. This vision ensures that the constitution reflects the people’s general will, not the elite’s whims.

Skeptics might argue that collecting millions of submissions across Kenya’s 1,450 wards is logistically daunting or risks fragmentation. But technology—digital platforms, mobile apps—can streamline this process, as seen in Iceland’s 2011 crowdsourced constitution.

Robust civic education can empower citizens to articulate their needs, while an independent commission could synthesize inputs into a cohesive draft. The greater danger lies in repeating Bomas’ mistake: entrusting a small cadre of representatives with unchecked power. 

Direct sovereignty is a constitutional imperative to restore the social contract ruptured in 2004. This was more than a procedural fix — it is a call to reclaim agency.

The MPs of Bomas escaped accountability, but their legacy haunts us: a devolution dream deferred, a legislature at odds with itself, and a citizenry sidelined. A ward-level conference offers redemption, placing power where it belongs—with the people. It demands active citizenship, not passive acquiescence. The road will be challenging, but the alternative—clinging to a flawed inheritance—is untenable.