The document passed by a convincing majority vote in last August’s referendum is also faced with hurdles of weak institutions and a negative attitude by a political class and a bureaucracy used to an old order and old way of doing things.

Observers in Kenya agree that implementing the new constitution will be an uphill task, requiring political goodwill and commitment against a background of a hugely optimistic populace, a majority of whom see it as the panacea to the problems that have bedeviled Kenya in her 47 years of existence as an independent state.

Actions by political leaders seem to suggest that the old habits are not dead yet. Various deals currently being cut between main political parties in making appointments to critical bodies tasked with the responsibility of actualizing  the constitution suggest that the obstacles towards implementing the constitution run deep and will be very difficult to surpass. The obstacles have to do not only with things are done, but also to who is in charge, and the informal, unofficial, yet very close relations and loyalties between them.

The initial implementation phase was set to end on November 27 when the executive was supposed to have picked commissioners to the Constitution Implementation Commission (CIC), the body that ensure that timelines, including laws and policies are put in place in actualizing the document. Also to have been in place was the Committee of Revenue Allocation  (CRA), a body whose task is to allocate national revenues to the new 47 counties which will form the main units of a devolved government.

However, reports that head of state Mwai Kibaki and prime minister Raila Odinga had cut a deal on how their respective parties, the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) would chair positions, dashed hopes of a new Kenya where meritocracy as opposed to political patronage determines public appointments. Under the alleged deal the two principles agreed that ODM will nominate the chair of CIC while PNU would nominate the chair to the CRA. That deals aside, all the main political leaders including the principals and cabinet continue to hold senior positions in political parties contrary to the spirit of the new constitution.

Other parts of the implementation, including the process of constituting a new judiciary, reforming the police force and appointing both a new Attorney General and a Chief justice are well on course, even if the pace at which they are moving has not been impressive so far. More worrying is the possibility that the president and the prime minister may horse-trade when it comes to appointing the office bearers to the two critical offices, If this happens, it will further complicate the road to  an anticipated new Kenya. This would deny the country appointees free of political affiliations. There will also be further reason to fear that one of the key ambitions embedded in the spirit of the new constitution;  that state officials should be picked purely out of integrity and ability to perform the duties of their offices will not be achieved.

The debacle surrounding the creation of new constituencies by the Interim Boundaries Committee (IBC) where some parts of the country have complained of discrimination, has threatened to re-open the never healing wounds between coalition partners ODM and PNU parties, kicking off a storm that could potentially polarize Kenya again, if not speedily resolved. With the political class keen to interpret and see things through tribal and party eyes as evidenced by the proposed constituencies controversy, it is feared that every law and policy crafted will be seen along the same
lines of who stands to gain or benefit the most.

Managing the high public expectations demonstrated by the widespread optimism sweeping across the country may also pose a challenge, especially if the political leadership fails to ensure that benefits of the new constitution are felt and enjoyed swiftly by the citizenry, and across the entire nation. But it is the existence of anti-reformers and “water melons” in positions of power in government that is causing even more concern to those who want to see a new beginning in Kenya. Such persons, it is feared, could use their networks to try and maintain status quo by obstructing change thus frustrating a majority yearning for a new order and voting with a 67 percent margin in favor of the document.

“Anti-reformers have regrouped and formed political and bureaucratic alliances to frustrate the process”, notes a document by South Consulting, adding that “because of the passion with which such groups protect self interest, it is possible that such groups will use their political and bureaucratic influence to develop legislation of low
standard or ensure that proposed legislation protects status quo”.

The report prepared for the Kofi Annan led Kenya National Dialogue and Reconciliation (KNDR) group further notes that “Anti-reform forces including water melons may take over the implementation process of the constitution” If they do, the report says “the old order will prevail and the country will revert from a reform mode to business as usual”. The report calls for urgency in carrying out electoral and institutional reforms. It also calls for eternal vigilance among Kenyans to ensure that the document said to be one of the most progressive in Africa becomes a reality. With more than 100 bills set to be passed by parliament as the actualization takes shape, political cohesion between legislators will be critical to ensure that petty inter and intra party rivalries do not hamper progress. The fact that no civic education on the document has been initiated by the government is also worrying, with observers fearing that an ignorant public would not be able to guard the process.