KATIBA AT 10: JOURNEY THAT LED TO THE BIRTH OF SOCATT (K)
The origin of Constitution and constitutionalism can be traced back to the concept of Social contract. Here, individuals surrender some of their sovereignty to the state or duty bearers in consideration for state or social protection. Based on these concepts, all governments across the world; democratic and authoritarian subscribe to particular ideals that are either written or unwritten to enable them govern their subjects. Nonetheless, struggle that subsequently leads to a consensus; voluntary or otherwise is a common underpinning that leads to the adoption of any constitution.
Kenya just like many other Countries has not been an exception in the struggle towards good governance that is agreed upon by a set of rules, laws and principles conceived in a participatory manner. To this end, there have been several attempts since independence to adopt a governance system that is acceptable by all. These moves were characterized by detentions, torture and in some instances death. This journey can be traced back in the early 1990s when the struggle to repeal Sec 2A to give room for multi-party democracy began. The proponents of this mode of governance were advocating for a system that institutionalized governance rather than have power in the hands of few individuals.
After several attempts to have a new constitution, Kenya made a break through; On August 27,2010 a new social contract in form of a constitution was entered into. The aspirations were high and expectations were immeasurable. This new realization caused a paradigm shift in the governance systems in Kenya. Several provisions were put into place to strengthen the existing structures which included but not limited to creation of the Supreme Court and establishment of several Constitutional Commissions and independent offices.
Further an elaborate Bill of Right was put in place providing for equality before the law while advancing the Economic and social Rights as well as the Civil and Political Rights. In addition, devolved system of governance was introduced with the aim of eradicating poverty whereby resources and power were brought closer to the Kenyan citizens as stated under Art 174.
These among other provisions in the Constitution have made the document attract accolades from far and wide. The Kenyan constitution has in many instances been referred to as one of the most progressive and trans formative written supreme law in the world. The task however has been in implementing what is actually provided for in the document; Constitutional experts refer to constitutions as living document into which a breath of life has to be pumped for effectiveness to be attained.
Chapter 11 for example provides a framework for devolved units in Kenya. This was actualized through a raft of pieces of Legislation key among them being the County Government Act of 2012. Unlike the National government, devolved units have two levels of governance; Executive and the Legislature commonly referred to as the County Assemblies. Bringing resources and power closer to the populace has been a huge milestone for the CoK 2010. Albeit with Challenges, Kenyans through devolved units have been able to experience and witness positive economic and social developments trends at micro level.
It is worth noting that transitioning to the two tire system of governance was faced by a myriad of challenges. Kenya had no precedence of such high magnitude decentralization. Structures had to be put in place with the help of the Transition authority to ensure that the devolved units operated at optimal levels. Actualizing the object of devolution required the two arms of government at the County level to work in a collaborative and consultative manner while ensuring that the vision of the drafters of the constitution with regards to devolution is not compromised
Considering the complexity of business in a legislative environment, County Assemblies back then were operationalised in accordance with the existing legal provisions; nonetheless the end results were not effective enough due to knowledge gaps that existed. To remedy this situation few County Assembly Clerks led by Clerks who had then had been seconded from the National Parliament among a few others, convened and explored possible strategies on how the County Assembly Service would be strengthened to enable them support coherent and effective discharge of duties by the Members of the Assemblies ( MCAs).