Governor seizes opportunity to implement what he fought for in 90s reforms

Govenor Kivutha Kibwana during the launch of Kikima Dairy Plant.


Prof Kivutha Kibwana projects a certain humility that is depressingly rare.

He resisted when an aide attempted to give him a “better” seat during our interview. The law professor was comfortable on a seat his staffer considered not befitting his status—an ordinary seat.

A conversation with the Makueni governor paints a picture of a scholar who left the ivory towers and retreated to the village to work with ordinary people. And he seems pretty at home.

He fought for a Wanjiku-driven Constitution. After passing the Constitution, he followed Wanjiku to the village.

The governor sees his current job as an opportunity to implement what he fought for during the clamour for reforms in the 90s, which culminated in the enactment of the 2010 Constitution. 

He is particularly fascinated by the provisions of the Constitution that demand people’s participation in governance.

Prof Kibwana was thrust into the public limelight as the convener and spokesman of the National Convention Executive Council (NCEC) from 1997 to 2002. He was then teaching at the University of Nairobi where he served as the associate professor (1977-2002) and dean of the Faculty of Law.

But he doubled up in civil society activities agitating for constitutional reforms at a time when it was not fashionable to do so.

A number of his friends such as Mukaru Ng’ang’a and Willy Mutunga had been detained by the Moi regime that intensely policised the academy.

While at the NCEC, Prof Kibwana teamed up with other pro-democracy voices such Reverend Timothy Njoya, Davinder Lamba, Willy Mutunga, Pheroze Nowrojee,  Mutava Musyimi, Cyprian Nyamwamu and Opposition politicians to demand for  a Wanjiku-driven Constitution.

At the centre of the campaign was the argument that Kenyan citizens should be allowed to play a central role in determination of how they should be governmened.

The NCEC, under the Katiba Mpya and Maisha Mapya banner, they inspired mass action which  forced the Moi regime to initiate dialogue with the opposition and civil society formations for review of the independence Constitution.

They demanded a Constitution that secures the sovereignty of the people instead of the sovereignty of the government, a law that entrenches the supremacy of the Constitution instead of Parliament and expanded Bill of Rights.

The Kibwana lobby also pushed for a Constitution that articulates national values, separation of powers between the Judiciary, the Legislature and the Executive, provides for Devolution and people participation in governance.

These are now celebrated pillars of the 2010 Constitution.

At one point in 1999, the convention called for a caretaker government to oversee the writing of the new law.

“Kanu has demonstrated that it is unwilling and therefore incapable of ushering constitutional and democratic change in Kenya. The overwhelming majority of Kenyans know only a caretaker Government with representatives from all key sectors of the society can, within an interim period, midwife constitutional changes.”

In fact, NCEC set up a “people’s constitutional review forum” parallel to the Kenya Constitution Review Commission which had been appointed by Moi.

Members of the pro-reform group cast doubt on the commission’s ability to independently spearhead the reform process.

The call angered then President Daniel Moi and Opposition chief Mwai Kibaki who condemned the convention. Prof Kibwana says that their efforts–which came with considerable risk to their lives and careers— was fuelled by the desire to lay foundation for a good Constitution and ethical framework for the country. 

After a protracted debate in Bomas, the constitutional review process ended up in Parliament. This, he says, offered him the motivation to join politics in 2002.

“Since the Constitution had gone to Parliament I thought I should follow there to ensure that it was passed,” he said.

He was elected as the MP for Makueni and appointed as a Cabinet minister for Environment and Lands. He lost the seat in the 2007 elections, but President Kibaki appointed him as his advisor for Constitutional, Parliamentary and Youth Affairs. He bounced back as Makueni governor in 2013.

It is in Parliament that he would learn critical lessons. “Using politics to effect development is not easy,” he says.  It can be frustrating.

“The structure we inherited from colonialism continued to dominate the political space. One gets frustrated because it is not easy to deploy politics for transformation.” Having spent most of his time in the civil society and the academy, he was confronted with two worlds: The world of the possible and the impossible.

“The possible which one can see from the academia and the other which is quite not yet born but which you think through politics it can be born. We thought politics can mid-wife a good society.”

Prof Kibwana thinks that the promise of politics has been elusive. He blames this on a political culture in which leaders think they are above the Constitution and use their political position for self-gratification. He thinks that the prevailing brand of politics is not “liberating.”

“We gather our people every five years and promise them economic goodies but we don’t commit ourselves to ensure the promises are met,” he says.

The elite in power, according to the governor, always focuses more on self-actualisation and self-preservation. Not to deliver to the sovereign people who have delegated power to them.

But he strongly holds that Devolution provides the hope for transformation of communities. Prof Kibwana has been credited for initiating projects in the dairy, food processing and health sectors that could improve his lives in Makueni County with a population of nearly a million people.

And this he credits to a development philosophy, which puts the people at the centre.  He says this is the spirit of the constitutional provision for public participation in the 2010 Constitution.  The governor has come came up with a much-praised public participation framework in which Makueni residents not only decide priority projects but scrutinize budgets and approve payments for tenders after verification of work done.

He sees the development process as partnership between citizens and their leadership. Counties are “people’s governments.”

“We fought for a Wanjiku-driven constitution. Now we must have people-driven development,” he offers. He says the various projects are aimed to ensure some degree of economic independence of his constituents.

He has been photographed consulting Makueni residents in dingy eateries and barazas with villagers while seated under a tree.

But how did a university professor get so comfortable in the village?

“The village is one very good university,” he observes.  “You learn a lot from elders from children. The elders have solutions to some of the problems we face.”

He adds: “I was brought up in the village and the academy. The academy taught me law and human rights.  I live what I studied. I also believe that all human beings are equal.”

Prof Kibwana is encouraging the people of Makueni to come up with “Makueni Constitution”, a grundnorm of sorts, that articulates their expectations, values and dreams. The document, he points out, will seek to reinforce the country’s Supreme Law.

But it has not been all rosy for the governor.  His first time was characterized by a frosty relationship with members of the County Assembly over allocation of cash, rendering the county dysfunctional.  The MCAs had sought Sh1 billion budget for recurrent expenditure up from Sh187 million they had been given but the governor rejected the demand. They refused to pass budget and impeached the governor.  Angered residents then petitioned President Uhuru Kenyatta to dissolve the county.

However, President Kenyatta overruled the recommendations of the Commission of Inquiry into the Makueni County Government crisis, saving it from going down in history as the first county administration to be dissolved. The President overturned the decision of the Mohammed Nyaoga-led commission, which had called for the suspension of the Makueni County Government. He said the reasons the commission advanced to back its position did not, to him, constitute exceptional and extraordinary circumstances to meet the threshold set in the Constitution.

The President appeared persuaded that dissolution of the county would have encouraged similar demands from other counties which experienced strained relationship between the Executive and County Assemblies.

All the MCAs who participated in the charade were kicked out in the last elections—except one.  Prof Kibwana argues that he held by his guns to protect public money.  He quips: “They said I had put pepper in public money.”

And having been central in the making and implementation of the 2010 Constitution, Prof Kibwana offers that it can be reviewed to strengthen Senate, ensure independence of the Judiciary and Legislature as well as reinforce Devolution.In hindsight, he believes that the number of counties could have been smaller to make them more viable.

Governor Kibwana resists any suggestions that he pursues a higher political office in the next election, probably the presidency.

He is unequivocal that he will retire from politics after his second term to be with family. .”

“I will be 68 years old.  I would have worked in the public sector for 45 years. I have grandchildren.  It will be time to call it a day,” says the professor.

“There hasn’t been enough public participation to convince me that I should aspire for higher office.”