This is the time of year when newspaper are full of (usually rather tedious) articles about New Year Resolutions.
But how about some constitutional new year resolutions – for Kenya’s leaders and her people? I have tried to indicate which part of the Constitution is relevant –avoiding repetition.
Resolutions for public (including state) office holders
First, I will make the values of the Constitution my guide in all I do. This means I must put country first (being patriotic), I must respect the human dignity of everyone, and I treat them fairly and as of equal worth. (Article 10)
Second, I will particularly ensure that my conduct is in accordance with Chapter Six – in other words that I am guided by integrity. This means that the last thing I should allow to influence my actions is my personal benefit. I shall constantly remind myself that it is not about me – or indeed my friends and family. If some action of mine might benefit me, I shall if possible avoid this situation, but if it is unavoidable I shall ask advice, and be totally open about the situation.
Third, my behaviour in office will show that I realize that holding any public office is an opportunity to serve, and that I am not superior to anyone else because of my office. And I shall always try to behave in a way that increases Kenyans’ respect for my office. This includes my behaviour in private life. (Article 73(1)(a)).
Fourth, I will give special consideration to the vulnerable and marginalised sections of society. I realise that the constitutional vision is of a society in which everyone matters. In order to create a genuinely equal society it is necessary to ensure that those who have been held back by past discrimination, or by other realities, have a chance to catch up. (Article 27(6) and Article 56).
Fifth, I will ensure that in everything I do I respect the need to be transparent and accountable. Transparency mean that I give reasons for what I do, and if I have power to make rules about activities in the public sector those rules enable anyone to see how decisions are made. (Articles 47 10, 232).
Sixth, I will not waste public money. (Article 201(d)).
Seventh, if my work includes making decisions, I will ensure that I do so following the Constitution (Article 47). This includes that if I have the responsibility to make a decision I exercise that responsibility personally. I will not abdicate my responsibility to someone else. This is particularly important if I am, or am part of, a constitutionally independent body – like the judiciary, a commission or the Office of the Director of Public Prosecutions. If the Constitution says that I am not subject to the direction of anyone else, I must accept that, and not take orders from anyone else on the decisions I make – not even from the President (e.g. Article 231(3) on the Central Bank or 161(1) on the judiciary). However, if I am supposed to work in consultation with or after consulting, someone else, I will ensure that the consultation takes place (Article 259(11)). And I will respect the constitutional principle of public participation – and ensure that this is properly conducted and fully taken into account (Article 118).
Eighth, I will respect the role of other parts of the governmental system. This means that I must obey court orders. And (for judges) I must allow other arms of government to do their job – which means they must have the chance to do their work, though what they do or decide can be declared unconstitutional if they do in fact violate the Constitution.
Ninth, if my responsibilities touch on the relationship between county and national governments,I will respect and make operational the twin principles of devolution:distinctiveness and cooperation. At the two levels we must work together. But we must not try to take over work assigned to another level (Article 6(2) and Fourth Schedule on powers).
Tenth, I will always remember that the people of Kenya are the source of any power I have, and that they have entrusted me with that power (Article 1), and shall do so genuinely and not as a matter of lip-service only.
The (sovereign) people of Kenyan
It is easy for us to think that respecting the Constitution is something that those in public life must do – and do it for our benefit. But the implications of the Constitutions are clear – we too, as the people of Kenya have obligations.
The Constitution in some ways turns normal expectations on their heads. It recognizes the people of Kenya as “sovereign”. The origins of that word (used particularly about monarchs) are traced to the Latin word for “above”.
What does it mean to say the people are “above” -above what or whom? It surely means above the government and its institutions.
Those in a position of superiority are expected to set a good example. Perhaps the people– as sovereign – should reflect that they should be setting the good example,since the so-called leaders have so dismally failed to do so.
Resolutions for the people
First, I will always remember – and act accordingly – that the rights I want for myself must be enjoyed by every other Kenyan, and that I have an obligation to respect everyone else’s rights. (Article 20(1))
Second, I will insist that I am treated with respect, and that my rights are respected. And I shall be prepared to stand up for the rights of others with equal enthusiasm.
Third, I will always remember that just because another person is different from me (in the way they speak, their religion, their lifestyle, their physical or mental abilities) they are entitled to equal respect, and that this diversity is something to celebrate not to use as a reason for hatred or suspicion.(Preamble, Article 27)
Fourth, I will take an interest in the welfare of the country, try to understand decisions relevant to my community, including those about budgeting and spending, and if possible exercise my right as a Kenyan to be involved in public participation.
Fifth, I will use my vote (unless I have religious or other valid reasons not to do so).And when I vote, I shall consider what the person I am voting for offers to the nation and the community. I shall not vote for a person merely because he is one of “my people”. And I will refuse any offer of money or any other benefit to vote in a certain way.
Sixth, I will not pay any bribes – however much time and trouble it will save me.
Seventh, I shall respect the environment, including cooperating with the government and other bodies to conserve the environment. (Article 69(3)) When I have the chance and it would be fruitful to do so, I shall plant a tree indigenous to Kenya.
Eighth, I shall protect our culture, and teach younger generations about their own culture and that of others in Kenya. (Articles 11 and 44) But I shall not insist on culture when it is not consistent with the Constitution.
Ninth, I shall improve my understanding of why people in Kenya wanted a new Constitution, and of how the people can understand and protect the Constitution.(Preamble, Article 3(1))
Admittedly,this is a bit like the BBI Report – it says repeatedly that we should do what the Constitution (or another law) already says we should do. But that is the point of New Year resolutions – to take a moment of renewal to reflect on what we are not doing that we ought to be doing.
Of course,we should not do it only at New Year. And our public office-holders should do it constantly – after all, on taking office, they solemnly swore to obey,respect, uphold, preserve, protect and defend the Constitution.
By Jill Cottrell, Director, Katiba Institute
This article was first published by the Star Newspaper