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George Kegoro: The New Kenyan Constitution


So what is left to do now that the constitution
has been passed? The difficult process of implementing the new constitution. There are very many prongs that need to be addressed in implementing and bringing to reality the
new constitution. The new constitution is to a significant extent self-executing. It establishes a commission that will be responsible for its implementation. It also establishes timelines, within which implementation of aspects of
the constitution, through the enactment of legislation, must be achieved. It also mandates that in default of approval by the legislation, of pieces of legislation to implement the new constitution, then the legislation can, on application to the high court, be dissolved and a new election can be held. So the new constitution very much also anticipates that there will be resistance
to its own implementation, and establishes mechanisms first of all for determining whether or not
default has happened, and also mandates action in the event of such default. What do you think this new constitution, once all the implementing pieces have been
put into place, will mean for Kenya? I think the new constitution –there are very many benefits that it, it can bring. At the political level, it, it changes the executive very very radically: you will recall that the country had, has had significant political violence, around the presidential elections, especially in 2007. The mode of electing the new president, under
the new constitution almost certainly assures that the next president will be a consensus president. Hopefully that will mitigate the kind of violence that the country has had in the past. The new constitution also recognizes the failures
in the judiciary that have led to the political instability in the country, and therefore requires a mandate, a wholesale vetting of the judiciary. It also mandates
and requires the establishment of an additional tier to the Kenyan judiciary, that
is the Supreme Court –that will be the apex court in addition to the existing tiers which constitute this court of appeal, the high court and the subordinate court. The new constitution has strong access to
information requirements, than that is, that constitute, what is regarded as a progressive bill of rights, which includes
socio-economic rights, in addition to the traditional political and
civil rights. The new constitution also has definite and distinct gains for women, whose inclusion in the legislative process–in the political processes– is more guaranteed in specific– in very specific terms. So, one would say, the new constitution, if faithfully implemented, can have demonstrable benefits for a large segment of the Kenyan public that
were previously excluded from the political processes.

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