Trumpets of reforms blow louder as Kenya marks 16 years under 2010 Constitution

On Thursday, August 27, a group of people largely composed of the youth gathered under some trees at Jeevanjee Gardens in Nairobi, carrying Kenyans flag, and banners and placards inscribed with "implement the constitution. Kenyans first" words.

These were in protests against what they believed is deliberate failure of those in authority to fully implement the 2010 Constitution.

Amidst the crowd were human rights defenders, representatives from Civil Society organisations, lawyers, and former office bearers like Chief Justice Emeritus Willy Mutunga among other leaders

Sixteen years after Kenyans gathered at Uhuru Park to witness the birth of a new constitutional order, the mood at Jevanjee for Katiba@16 celebrations was less about ceremonial nostalgia but more about an unfinished national project.

There were reminders of what the Constitution had delivered, devolution, an expanded Bill of Rights, stronger institutions and greater citizen participation, but also a litany of what has gone wrong or remains incomplete.

The gathering became a metaphor for Kenya's constitutional journey: a country celebrating a transformative document while simultaneously asking whether the promises made to citizens have been sufficiently honoured.

The Constitution came into force on August 27, 2010, after Kenyans overwhelmingly endorsed it in the August 4 referendum, with 68.55 per cent voting Yes against 31.45 per cent who voted No.

What is central to their argument now, Nyorosha Katiba Initiative, using the16th anniversary, expressed desire to effect constitutional and legislative reforms. 

At the heart of the initiative is an argument that Kenya's constitutional problem is no longer the inadequacy of the document, but the gap between constitutional promises and lived reality.

The organisation argues that although the Constitution guarantees social and economic rights, millions still struggle to access them.

Article 43 recognises economic and social rights, including the right to the highest attainable standard of health. Yet constitutional recognition alone, the group said, does not automatically translate into access

 “Our constitution granted us some social rights but needed further legislation to enforce them,” said the organisation's director, Shadrack Oketch, identifying healthcare as one of the most urgent areas requiring intervention.

"One important right is the one to access healthcare which is a fundamental issue and extremely key to humanity. But realistically, we still lose lives due to lack of access to Medicare due to lack of funds, hospitals demanding payments even before you undergo tests and diagnosis is done," he stated. 

His proposed Save a Life First Law seeks to prevent deaths arising from inability to pay hospital bills before receiving medical attention, tests or diagnosis.

The reformers are proposing a National Health Commission, adding another institutional layer to the governance of healthcare.

Nyorosha also believes that, although Kenyan children enjoy the right to education, school fees and financial hardship continue to push children out of classrooms despite the existence of presidential, governor, constituency and women representative bursaries.

 “Wouldn't it make sense to create an Independent Institution that addresses this issue and allow our legislators to provide an oversight role?” the organisation asked.

He proposed the establishment of an Independent Bursaries Commission to consolidate existing bursaries into an Education Fund, with the longer-term objective of providing free education in public institutions.

On corruption, Nyorosha called for making it a capital offence, and capping of graft cases to be concluded within nine months, with six additional months for appeals.

It also wants audit and public inquiry reports to have greater consequences, including barring persons adversely mentioned from seeking public office.

The CSO also identified the cost of doing business as key challenge bedeviling Kenyans, singling out the practice of demanding “goodwill” payments from entrepreneurs seeking commercial premises.

 “The demands by the landlords and their agents on goodwill for spaces in their buildings is a barrier to trade and stops many would-be entrepreneurs from proceeding to start businesses,” it argued.

Nyorosha wants the National Land Commission given broader regulatory powers to address rents, rates, land costs and goodwill requirements.

They also want constituencies reduced from 290 to 210 and the woman representative position. It also wants the removal of the constitutional requirement for a gender rule in elective seats.

It proposes that the presidential runner-up automatically become a senator and assume the role of Majority or Minority Leader in the Senate, while the runner-up's running mate would become a National Assembly member and Deputy Majority or Minority Leader.

This is an attempt to transform losing presidential candidates from political outsiders into institutional actors.

Nyorosha argues that allowing the President to choose commissioners from a selection process in which the Executive has influence creates a conflict of interest.

 “To give a player a choice to choose a referee for the same game he is part of is obviously wrong and how we can't see this baffles me.”

The organisation wants the IEBC selection panel to present a definite number of nominees to the President for ceremonial appointment within a specified period.

It proposes raising the minimum county revenue share from 15 per cent to 45 per cent and giving counties greater responsibility for infrastructure development in public primary and secondary schools.

It also proposes a Community Development Fund, financed through two per cent of nationally shared revenue and distributed equally among wards for income-generating projects.

The Nyorosha proposals come at a time when the Sisi kwa Sisi initiative associated with activist Eric Omondi has joined calls for a referendum to amend the Constitution.

Recently, he said he had collected more than 400,000 signatures to help him push for reduction of elective positions, arguing that "Kenyan are overrepresented."

"We have to fix the nation and root out corruption...the creation of counties was good but we have realised it is corruption that was devolved," Omondi said, drawing a parallel with the  United States system.

"The US has a population of over 400 million people yet they are represented with only 50 governors while locally, barely 58 million Kenyans are represented by 47 governors," he said.

However, Lawyer and Governance expert Javas Bigambo argue that while the proposals are permissible, the majority of the proposals can be dealt with through legislation, dismissing as "weird" the notion that every governance issue must be addressed by changing the constitution.

"We just need to have some of these issues enacted in national law and also have county assemblies pass legislation on issues that complement some national laws, whether it's on corruption and good governance," he opined.

Bigambo noted that several of the demands being raised by reform advocates are already reflected in recommendations made by the committee overseeing the implementation of the ten-point agenda agreed upon by President William Ruto and the late former Prime Minister Raila Odinga.

He cited recommendations for speeding up the investigation and prosecution of cases, including proposals that investigations by the Independent Policing Oversight Authority (IPOA) be concluded within six months and that its reports be made public.

He said accountability and good governance do not necessarily require constitutional amendments, arguing that existing institutions, particularly county assemblies, have failed to fully exercise their legislative and oversight mandates.

 “When you look at the Controller of Budget reports, they speak to challenges in accountability of public finances at the national and county levels. All those issues do not require a referendum,” he said.

Bigambo said the debate over the constitutional position of women representatives, however, would require an amendment because it is expressly provided for in the Constitution.

But he warned against pursuing a referendum to address individual provisions in isolation.

 “If we have to go to a referendum, then there must be a focus on the entire governance structure, including, for example, the issue of county governments. Are we satisfied that we should retain them at 47, or do we want to rethink them?” he posed.

He said proposals to alter the constitutional order must follow the procedures set out under Articles 255, 256 and 257, with citizens able to pursue a popular initiative by collecting the required signatures.

However, he noted that Kenya still lacks a comprehensive referendum law to operationalise the constitutional provisions.

 “The first issue should be Parliament enacting a referendum law for purposes of implementing Article 255, with focus on Articles 256 and 257,” he said.

Lawyer Joshua Nyamori, meanwhile, offered a more measured assessment of the Constitution's 16-year journey, arguing that reform advocates should not overlook the gains made since 2010.

 “The issue is that they are misplaced, because we are just 16 years old in the new Constitution. We have quite significant successes, especially in the area of governance,” he said.

Nyamori pointed to devolution as one of the most consequential achievements of the new constitutional order, saying it had moved decision-making and public administration closer to citizens.

 “We had aspired to decentralise governance away from Nairobi. So we established the counties. Our counties are up and running, despite their challenges,” he said.

According to Nyamori, devolution has enabled citizens to interact more directly with their governors and county assembly representatives while giving them greater opportunity to monitor public expenditure and participate in local governance.

 “I am not saying that counties have done well. We have seen some of the ills that we were trying to eliminate in Nairobi being replicated. But it is better,” he said.

He also cited Kenya's electoral and judicial processes as evidence of institutional progress under the 2010 Constitution, noting that courts have both nullified elections and upheld presidential results.

More importantly, he argued, the constitutional order has expanded the space for citizens to openly question political leaders without necessarily facing the kind of repression witnessed in some neighbouring countries.

 “On the political and governance area, we have done well,” he said.

But Nyamori cautioned that the debate should not stop at political and institutional reforms.

The more difficult test, he argued, is whether the constitutional transformation has improved the lives of ordinary Kenyans.

 “The Constitution was not supposed to be amended in itself, and even the governance process that we established in the Constitution was not supposed to be amended itself,” he said.

The question, he added, is whether the political transformation has translated into tangible improvements at household level.

 “We have been in politics for five years. But to what extent does that politics change livelihood at the household level?” he posed.

That question brings the debate back to Article 43, which guarantees economic and social rights, including access to housing, education, healthcare, sanitation and water.

Nyamori argued that these provisions were deliberately framed as constitutional principles and guarantees rather than detailed policy prescriptions.

“The Constitution is supposed to be a principle, or a body of principles and values. It cannot be prescriptive,” he said.

For him, therefore, the challenge confronting Kenya at 16 is less about whether the Constitution contains the right promises and more about whether the State has developed and faithfully implemented the laws, policies and institutions necessary to turn those promises into reality.