KITUO CHA SHERIA BLOG

CHUFF FROM THE GRAIN:  A STEP INTO THE CONSTITUTIONAL AMENDMENT DISCOURSE IN KENYA

While it is true that most constitutional amendments and/or legal milestones are often conceptualized as a political process, it is not always just politics. The need for constitutional amendments as amendment of any law thereof is born out of the fact that societies evolve and change. Law as a normative factor must therefore serve the needs of the times. Mwalimu Julius Nyerere liked countries to growing babies and Constitutions to babies’ clothes. He therefore opined that as babies grow, it is only practical that they get bigger clothes. This must however be distinguished from political play. Constitutional amendment process need not be left at the whimps of the politicians as they are often myopic and their game is all about power.

In Kenya, the Independence Constitution was amended a couple a times in a bid to expand the democratic and political space. It is however important to remember that the first of these amendments were made with intentions to create an imperial and centralized presidency. This is what happens when you leave it for politicians as Kenya did. The Constitution (2010) is however different. It was created as a people centered document with referenda or popular initiative as a means to change or amend the most significant parts of the law. This has not deterred the current political debate on constitutional amendments.  There are politicians who believe that Kenya has evolve and needs change on one side, and those who see the call for referendum an unnecessary distraction at a time for work and economic growth. This article doesn’t think these calls are a waste of time, but there is  need to separate  the grain from the chuff, thus, areas  that  need amendments and areas that may not need right now

The Constitution of Kenya 2010 is based on a presidential system. The president is inter alia the Head of State, Head of Government and Commander -in- Chief of the Defense Forces as stipulated in article 131 of the supreme law. Furthermore, article 132 of the Constitution of Kenya sets out the functions of the President to include, submitting reports to Parliament on different issues.  Parliament ought to be independent pursuant to article 95 and 96 of the Constitution 2010; however, Jubilee Party tyranny of numbers has led to questions as the opposition’s ability to offer alternative leadership

There are number of Constitutional amendments that have been proposed in this regards. One of these proposals is a Rotational Presidency System to replace the Presidential System. The essence of this is the argument that the Executive as currently constituted is thine and not as inclusive as required. Under this proposed system, the people chose a few people and they take turns in leading as President, while the rest are Cabinet Secretary.  If the Presidency is to be rotated, it may take away the sting from the position. Moreover, all Kenyans will own it as opposed to a few tribes. The proponents of this proposal insist that Rotational Presidency may save Kenya from periodic divisive election, characterized by violence, loss of property and life.  There are more questions with this proposal as Rotational Presidency takes direct power from the people for a long time. The criteria for picking or electing those who will be rotated is not so clear, most likely it will be for the elite. There is also no guarantee that these elected elite will not hold the Government ransom or begin internal wars. This system of Government also makes it hard to do checks and balances as there is no opposition

The Other proposal is to change Government from a Presidential System to a Pure parliamentary System, where instead of a President there is an Executive Prime Minister as head of Government and Commander-in-Chief of the Defense Forces. Under the Constitution of Kenya 2010, the President and the rest of the Cabinet is subject to very little Parliamentary scrutiny pursuant to article 132(1) c and 152(3) of the Constitution of Kenya. The proponents of this system say it is the most ideal for a multi-cultural society like Kenya. This system however means that the Parliament rather than the people. Other than politics, as lawyers, the difference between a presidential and a parliamentary system is as good as the people managing the system.

There is also a proposal to expand the Executive and introduce the Office of the Prime Minister and two Deputies, in addition to, the President and his Deputy. This system anticipates sharing of Executive power between the President and the Prime Minister. Uganda and Tanzania are prominent for this system save for the design of the system. The opponents of this proposal are concern over a blotted Executive. If this is to be added the two-tier legislature the questions of the big wage bill is still with Kenyans.

There is also no Guarantee that a bloated Executive will solve the problem of inclusivity. The only thing one can be sure is this system will benefit the elite.

Lastly, there is a proposal fronted by the former Prime Minister Rt. Hon. Raila Odinga. He feels that the Constitution needs to be amended to introduce a third tier of devolution. Odinga is seeking to make counties economically viable by going back to the fourteen economic blocs as proposed by the Bomas draft. This means that Kenya will have to build devolution upwards as well as downwards While Odinga’s intentions are noble, the ethnic politics within the counties may not give way for such amendments. There is so much ethnic colonization of Counties in Kenya. The other is the public wage bill as well as blotted elections which is already an issue

There are areas that need amendment in the Constitution of Kenya 2010. Some of these have been tested by the system over the ten years after the promulgation of the Constitution 2010. These are areas where the Constitution has remained silent when confronted. As much as the  Supreme Court is equipped to give advisory opinion under article 163(6), there is need to reconcile these with the law hence amendments.

 Article 1 of the Constitution of Kenya 2010 gives sovereign power to the people of Kenya. This can be exercised directly or indirectly. When it comes to indirect exercise, it is clear, as Kenya the subsequent chapters that are elaborate on representation and separation of powers. The silence of the law is loud with regards with direct exercise of sovereign power. The law gives citizens a choice, but to what extend can they exercise these powers directly? Do citizens in Kenya really have a choice to reject the institutions and exercise the sovereign power? This provision in the Constitution of Kenya 2010, need to be amended so as to take away the ambiguity.

The other area that may require amendments is articles 93 and 96 of the Constitution of Kenya 2010. The constitution was built on a triple legislative structure. They include, National Assembly, the Senate and the County Assemblies. This has created a lot of wrangles, double work and a huge wag bill. The Senate was created so as to develop legislation for checks and balances and to enable devolution. This is work that should have been given a time limit as Kenya strengthens the County assemblies. As much as scrapping of the Senate may  be a very contentious issue, it may save the wage bill and devolution will make more sense  when and if the County assemblies are strengthened in terms of finances, professional capacity, the breath of legislation and the economic viability  of the Counties. If this is to be done, there may also be need to amend the enabling Acts of Parliament. 

Related to this is the position of the women representative. There are proposal to the effect that it should be scrapped off. The reality so far is that as much the position helps in getting to Gender parity, there is very little they can do little without a fund. The same story is told of the Members of Parliament who represent special group. Scrapping these off gives Kenya an opportunity to rethink representation. The idea of representation today is just for show and it doesn’t help in transforming the Kenyan society. 

Election matters in Kenya have also revealed a lot of gabs in the law. The questions of repeat election, pursuant to article 140, need to enumerate so as to bring clarity. There are other areas that may need clarity such as what needs to happen when a candidate withdraws from a presidential race. There have also been calls to extend the timelines for determination of Presidential petitions.

Lastly, there are the questions of assumption of office of Deputy Governors in the event of death or incapacity. The Constitution 2010 in article 182(2) set the Deputy Governor to take over for the rest of the term in the event of a vacancy. This provision is seen as cheating the voters especially in the event of death and where it takes place in the beginning of the term. This article may be amended to provide proportionality, to say that the Deputy Governor is to take over when the Governor has spent about half their term.

By;

Ouma Kizito Ajuong’Advocate