Mudavadi speaks on gains and gaps

Thursday, August 27th, 2020 00:00 |
ANC leader Musalia Mudavadi. Photo/PD/SAMUEL KARIUKI

ANC boss gives insight on accomplishments and issues he feels should be addressed.

Musalia Mudavadi

Reflecting on the 2010 Constitution, the Amani National Congress boss, who was a member of the Parliamentary Select Committee on the Constitution (PSC) that shephered the process that led to its enactment, reflects on gains and gaps that could be addressed in the document.


These are some of the highlighted successes by government in compliance with the Constitution:

UNDER CHAPTER 2: DEVOLUTION: Introduction of county governments to ease access to services. Services have come closer to the people. Representation has come to ward level, hence more citizen participation in their own local affairs.

However, this framework should be used more meaningfully by allowing locals to participate in decisions affecting them as envisaged by this Chapter. 

Let us not take advantage of the poverty of our citizens to buy them into rubber stamping decisions affecting them.

UNDER CHAPTER 15:  SETTING UP OF COMMISSIONS AND INDEPENDENT OFFICES as envisaged has been achieved, for instance,  the Judicial Service Commission to independently recruit judicial staff.

If this framework is utilised well, we would have  a perfect separation of powers and an independent Judiciary critical for democracy and rule of law. Similar commissions include Revenue Allocation, Salaries and Remuneration Commission, Auditor General, Controller of Budget, Independent Electoral and Boundaries Commission (IEBC) and National Land Commission among others.

HUDUMA CENTRES have decentralised national government services and brought them closer to the people, hence alleviating their suffering.

The misses:

 UNDER ARTICLE 1 ON SOVEREIGNTY OF THE PEOPLE:  Sovereignty may be exercised directly or indirectly.

We exercise this indirectly through elections. If these elections are flawed, then sovereignty of the people is denied.

Today, IEBC, the single body charged with conducting elections has capacity and integrity challenges, yet we hope to rely on the same body to help effectuate the sovereignty of the people.

PEOPLES’ WILL VERSUS THE POLITICAL PARTIES’ WILL: Peoples’ right to representation has been taken over by political party interests.

A further challenge is the competition between owners of political parties and the interests of the people. This works against the well-being of the interests of the people.

UNDER CHAPTER 10 ON JUDICIARY: Under a democracy, the three arms of government must remain separate and independent while complementing each other’s efforts.

Judicial authority is derived from the people and exercised by the Judiciary. An independent Judiciary‘s primary role is to safeguard the Constitution and ensure the rule of law.

Challenge has been where the Judiciary’s independence is threatened both by Parliament and Executive-be it through its budget cuts, open intimidation or threats and outright refusal to appoint judicial officers by Executive, open disobedience of court orders. This is a worrisome state of affairs. 

To kill independent institutions is to kill the rule of law and invite lawlessness.

UNDER CHAPTERS 1, 2 and 11 ON DEVOLUTION:  Sovereign authority is exercised both at the national and county government level. The country’s territory is divided into counties.

The two levels of governance must consult and co-operate with each other, not strangulate one another! Challenges are:

Devolved functions under the Fourth Schedule include those of the ministries of Health, Agriculture, Transport, Public Works and Services.

Some functions have been devolved, but the attendant budget remains at the national government.

A good example is the Health ministry. The result is a failing county health services with perennial  medical workers’ unrest.

Functions of roads have also been devolved but the money remains with the national government with the National Roads Authorities, namely; Kenya Urban Roads Authority and Kenya Rural Roads Authority.

If we kill devolution, then we shall as well kill the Republic.

UNDER CHAPTER 12 REVENUE ALLOCATION BETWEEN NATIONAL AND COUNTY GOVERNMENTS: Revenue raised nationally shall be shared equitably between both governments.

Affirmative action must also inform the sharing. No less than 15 per cent ought to go to county governments. Yet, a paltry 10 per cent (Sh316 billion out of a national budget of approximately Sh3 trillions).

How fair is it for the 47 counties to share out the cow’s tail and hooves while the actual cow is eaten by the national government?

 UNDER CHAPTER 9 ON EXECUTIVE AUTHORITY: Executive authority derives from the people and must be exercised in a manner compatible with the principle of service to the people of Kenya and for their wellbeing and benefit.

Worryingly, we have seen Executive Order No.1 of 2020 and other Executive actions and it shows an Over-reaching Executive.  

A healthy democracy requires that even the Executive respects and upholds the Constitution. Unfortunately, the Executive has been seen to disrespect and obey the very Constitution it is supposed to protect.

By the Executive Order above, Executive overstepped the boundaries. It is refreshing and reassuring that the High Court declared it unconstitutional. This must be applauded.

We must never tell citizens to drink water while we drink wine!

UNDER CHAPTER 8, LEGISLATIVE AUTHORITY IS DERIVED FROM THE PEOPLE: Parliament is required to legislate on issues which the people, through this Constitution, have told them to do.

Sadly, Parliament has failed to legislate the two-thirds gender rule. Political party interests have captured Parliament and this is hurting its role of oversight, representation and even legislation.

No doubt our national debt level continues to balloon unabated under their legislative watch. Currently, the fiasco in revenue allocation reflects this capture of Parliament.


Since independence in 1963, attempts at constitutional changes have always shown us that such changes are a reaction by the political class to cushion their interests whenever they are exiting or entering power.

It happened in 1969, 1976,1992,1997,2005 and now it is here again as we approach 2022.

We must learn to be national and patriotic and not tribal and regional. That is the future of this Republic, no other way will do!

More on News