Powers that Wanjiku doesn’t know she wields
Former president Daniel arap Moi affirmed the primacy of the citizen in our country when he unwittingly introduced the Wanjiku metaphor. To counter the clarion call for people-driven constitution-making, Moi retorted: “What does Wanjiku know about the constitution?”
Civil society and the opposition in the 1990s responded to his dismissive remark by saying Wanjiku was the fulcrum of constitutional rebirth.
Now the Constitution’s preamble boldly asserts: “We the people of Kenya … exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution: adopt, enact and give this Constitution to ourselves and to our future generations.”
Article 1 summarises the entire citizens’ basic law. “All sovereign power belongs to the people of
Kenya and shall be exercised only in accordance with this Constitution … The people may exercise their sovereign power either directly or through their elected representatives.”
The preamble then acknowledges the supremacy of the Almighty God of all creation. The Kenyan Constitution is, therefore, based on the following hierarchy of God: The citizen, future generations, the Constitution, subsidiary laws, and finally the elected and bureaucratic leaders.
Parliament and the county legislative assemblies, the national and county executives, the judiciary and independent tribunals as well as constitutional independent commissions and offices all exercise power donated to them by the citizen.
But even when the Constitution places the citizen above elected and non-elected functionaries, they do not adhere to this truth. Public leaders have a tendency to act as if they are superior to the citizen who puts them in office. Article 1 is premised on social contractarian theory. Amplifying on this theory, Locke wrote “No man (or woman) can be subjected to political power of another without his (her) own consent.” Rousseau, Montesquieu and other philosophers elaborated on the social contract between the ruled and the rulers. Since all citizens cannot be rulers, they appoint a group to govern over the majority. However, the select few exercise delegated authority. If they rule outside the public interest or common good, the citizenry can withdraw its mandate through elections, court or even revolt.
Another unique feature of the
2010 people’s law is its emphasis on the direct exercise of the citizens’ sovereign power through public participation. The Constitution devolves power from the centre at the national level to the county and ultimately to the citizen. Schedule
4 of the Constitution, which distributes functions and powers between the national and county governments, identifies one of the mandates of the county government as “ensuring and co-ordinating the participation of communities and locations in governance at the local level” and assisting them develop the administrative capacity for governance at the local level. The Constitution, therefore, envisages that not only does the citizen delegate his/her sovereign power to elected leaders and other public servants, but he or she must also simultaneously continue to exercise direct power through modes of citizens’ governance at the grass roots and other levels. Through public participation, an Office of the Citizen is created to act as countervailing power over those to whom he or she delegates his/her power.
Citizens’ organisations also become the public space through which he or she can build capacity for exercise of the political rights and the pursuit of economic, social and cultural well-being. The 2010 Constitution has created the space for citizens to responsibly be co-creators and corulers in their country. This is a rare political reality in Africa, which makes Kenya’s Constitution to be uniquely progressive.
To supplement these provisions, the County Governments Act of 2012 has further elaborated on the centrality of citizen-government partnership. Section 48 establishes village units in each county as determined by the county assembly or further devolved units as a county may determine.
Part VIII of the County Governments Act describes how citizen participation should occur. To fully participate, citizens must have “timely access to information, data, documents, and other information relevant or related to policy formulation and implementation.”
They must have reasonable access to all processes of how government works so they can influence and impact on them. Citizens have the right to appeal government decisions, or seek other redress or remedy from harmful government action.
There should also be shared responsibility between county governments and non-state actors in decision-making to ensure a reasonable balance. The County Governments Act allows “Promotion of public-private partnerships, such as joint committees, technical teams and citizens’ commissions to encourage direct dialogue and concerted action on sustainable development.”
The county government law further guarantees citizens’ right to petition and challenge county government on any matter under its mandate. Citizens can also demand the county government to conduct referendums on county laws and petitions or on issues of planning and investment decisions affecting the county if 25 per cent of the registered voters demand so.
The Act establishes the modalities and platforms for citizens’ participation which include “information communication technology-based platforms; town hall meetings; budget preparation and validation forums; notice boards: announcing jobs, appointments, procurement, awards and other important announcements of public interest; development projects sites and establishment of citizen forums at county and decentralised units.”
Both civic education and other forms of public communication are elaborated by the Act for purposes of catalysing and facilitating the widest possible citizen participation in governance. County governments can establish television stations,
ICT centres, websites, community radio stations, public meetings and traditional media.
Yet the citizens are yet to appreciate the lighthouse position that the constitution, attendant laws and devolution have established for them. The political leaders have also to internalise the dictates of the Constitution especially in relation to the citizen-state relationship within the context of constitutionalism. Only when both citizen and leader have understood and practised their roles as mandated by the Constitution and devolution, can we proclaim that the constitution and the people have begun to flower.