, NAIROBI, Kenya, June 6 – Chief Justice David Maraga has cited the selective implementation of the constitution by the Executive and Legislature arms of government as the greatest impediment to constitutionalism in Africa, Kenya included.
Maraga, who gave a public lecture at the Oxford Union Conference on Wednesday, said deep-rooted State-capture and sectarian interests had restrained reforms envisaged in the 2010 Constitution.
“Left on their own, however, the Legislative and Executive Arms of Government, often comprised mainly of politicians and the political elites, will implement the Constitution in an arbitrary manner cherry-picking the easier and non-contentious provisions but always safeguarding their personal or sectarian interests. And that is exactly what they have done in Kenya,” the CJ remarked in his toughest criticism on the two arms of government.
He singled out the failure to enforce the two-thirds constitutional principle, failure to root out corruption and electoral fraud as the manifestation of the failure by the political class to implement the constitution.
Maraga, who surprised many when he cancelled a presidential election in the county in 2017, said the right to equal opportunities in the political, economic and cultural spheres is provided for under Article 27 (3) of the constitution but is never followed.
He cited Article 81 (b) that “not more than two-thirds of the members of elective public bodies shall be of the same gender.”
Past attempts to pass a Bill on the two-thirds gender rule in the National Assembly have flopped despite support from the Majority and Minority House leadership.
Maraga observed that nearly a third of Kenya’s annual budget is wasted as a resulted of misappropriation and embezzlement further limiting the country’s economic growth.
In 2018, data compiled by the World Economic Forum estimated the global cost of corruption at five per cent of the world Gross Domestic Product – a whopping $ 3.6 trillion.
Latest World Bank indices have shown close to $ 1 trillion is paid in bribes world over.
A 2017 Transparency International survey in which Kenya was ranked 143 out of 180 countries listed police, elected leaders, government officials, and business executive as the most corrupt individuals listing at 36, 36, 35, and 34 per cent respectively.
According to Maraga, the use of political office as a platform to consolidate economic had over time transformed polls into high-pressure events where results are contested often leading to skirmishes.
“As political power, especially on the African continent, facilitates the acquisition and consolidation of economic power, presidents in Africa, seek and wield a lot of power,” he said.
Maraga also noted with concern the interference of elections in Africa by foreign data firms saying election meddling posed a threat to the continent’s democracy and stability.
“The problem in Africa is not the supposed ‘divisiveness’ of elections; rather, it is primarily the absence of integrity in electoral management,” he said.
“Electoral fraud, and the increasing manipulation of electoral choices by foreign data and ICT management companies, pose a serious threat to Africa’s democracy, stability and security,” Maraga pointed out.
He however hailed the doctrine of separation of powers of the three arms of government under the Kenyan constitution as a step in the right direction in a bid to deter the absolutist exercise of State power.
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