Katiba Day: Kenya must keep its promise

As Kenya marks its second official Katiba Day, the Constitution of 2010 is worth celebrating not as a finished monument, but as a living promise each generation must choose to keep. On 27 August 2010, thousands gathered at Uhuru Park for the culmination of a generations-long struggle: the promulgation of the Constitution of Kenya, 2010. It was a moment of extraordinary hope.

Last year, 27 August was formally proclaimed Katiba Day. This year marks its second official commemoration and sixteen years since promulgation.

We often speak of the Constitution as a document, yet its deeper significance lies in its promise about the relationship between the people and public power. That promise begins with its consequential declaration: “All sovereign power belongs to the people of Kenya.” Every institution, public office and authority exercised by the State draws legitimacy from the people and must serve their interests. The Constitution therefore transforms public office from privilege into an obligation of service and accountability.

Article 10 placed human dignity, equity, social justice, inclusiveness, equality, human rights, integrity, transparency and accountability at the heart of governance. It also created commissions and independent offices to ensure these values moved beyond aspiration into the everyday exercise of State power. Their assignment was to place checks on power: protect constitutional values, scrutinise public authority, promote integrity and accountability, safeguard democratic institutions and provide avenues for citizens to challenge excesses and abuse.

At their best, their independence allows them to speak when others may be constrained, scrutinise where power resists scrutiny and demand accountability where institutional interests might prefer silence.

Constitutional commissions and independent offices should never be viewed as inconvenient appendages to the Executive, Judiciary or Parliament. Their capacity to question, investigate, advise, challenge and sometimes disagree with those exercising power is not institutional dysfunction; it is part of the constitutional design. 16 years later, however, we must ask the harder question: has that design worked? The success of constitutional commissions cannot be measured simply by the fact that they exist or by the number of years they have operated. The more meaningful test is whether their work has helped make public power more accountable, more transparent and more responsive to the citizen. There has undoubtedly been progress. Sixteen years into the constitutional order, commissions and independent offices have matured into important pillars of Kenya’s accountability architecture. They have helped give institutional meaning to constitutional values and provided important checks on the exercise of public authority.

But we should also acknowledge the strains: persistent underfunding, limitations in institutional capacity and periodic attempts to encroach upon institutional independence can weaken the very bodies that the Constitution created to check excess. An accountability institution without adequate resources or sufficient institutional space may retain independence in law while struggling to exercise it fully in practice.

The question before us, therefore, is no longer simply whether these institutions have grown. It is whether they have been given independence, resources and institutional space necessary to do the difficult work for which the Constitution created them. The true test of constitutional checks is not when institutions agree, but when those entrusted with oversight have the courage and independence to question power, demand accountability and insist on constitutional limits.