16 July 2018

Kenya: Only Civil Society Can Stop Elites Changing the Constitution

analysis

Many fear that changes to constitution could see its progressive elements removed.

Not for the first time in Kenyan history, politicians seem to be gearing up to amend the constitution. Over the last few months, individuals have launched a variety of campaigns to change Kenya's political system. So far, none has been successful, but some believe that amendments of some sort - and which could roll back on the progressive elements of the 2010 constitution - are becoming inevitable.

The first significant attempt came this February, when an MP with the opposition Kenya African Union (KANU) drafted an amendment bill. This proposal was to create the position of executive prime minister and extend presidential terms from five to seven years. The president would serve for only one term and would be largely ceremonial.

This effort was linked to KANU's chair, Senator Gideon Moi, son of former President Daniel arap Moi. Moi and deputy president William Ruto are entangled in a battle for political supremacy in the Rift Valley region. Members of the Moi family, one of the wealthiest in the country, see Ruto as a challenger to their regional political hegemony. The fact that the two men are expected to run for the presidency in 2022 has raised the stakes for both.

Introduction of the position of prime minister is largely seen as a way of further reducing the powers of the president by creating an additional power centre in the executive. Supporters of Ruto see this as an attempt to undermine his position should he ascend to the presidency. The initiative, however, failed to garner broad support.

The next ongoing effort began in April when Raila Odinga, leader of the main National Super Alliance (NASA), raised the prospect of constitutional changes during the national devolution conference. He highlighted two priorities: a return to a parliamentary system of government; and the creation of regional governments to supplement the current two-layered system of a national government and 47 county governments.

Odinga blamed the current presidential system for Kenya's political instability and politics of exclusion. "It is most likely that only a member of a large tribe will have any prospect of being elected president," he said. "Often deals will be made between leaders of two major tribes for mutual support which, if adhered to, could keep others out of power for 20 years."

Odinga made his proposals just a few weeks after the now famous handshake with President Uhuru Kenyatta. The country had undergone months of tension following the disputed 2017 elections. But in March, the two leaders jointly announced a national reconciliation programme and released a document titled Building Bridges to a New Kenyan Nation.

For some observers, both the handshake and Odinga's talk of constitutional change were designed to create acrimony within the ruling Jubilee Party. After all, just like the proposals made earlier by the KANU member of parliament, his proposals were interpreted as being at least partly designed to undermine Ruto's presidential ambitions. If both Odinga and Kenyatta were to support the changes, they would likely be able to persuade a majority of the population to vote in their favour, but Kenyatta was forced to assert publicly that he did not support such amendments.

Also in April, two citizens, whose political leaning was not immediately discernible, separately petitioned parliament. The first petitioner sought amendments to restrict the age of presidential aspirants to 70. This move, seen to be targeting the 73-year-old Odinga, failed to win much support.

The second petitioner sought to reduce the presidential terms to four years from the current five, whilst increasing the terms of both members of the National Assembly and Senate from five years to six and seven years respectively. That petition failed too.

Finally, Gladys Boss Shollei MP tabled a constitutional amendment bill earlier this month, proposing ways to increase women's representation in parliament through elections rather than party nominations.

Is constitutional change inevitable?

So far, the proposals for changes have failed to get anywhere. But many think it is only a matter of time before Kenya's constitution is amended. For changes to go through though, it would require a significant section of the political elite and the political parties to be in favour. This suggests that constitutional amendments are likely to reflect the new power-sharing deal between Kenyatta and Odinga. This may include the creation of a government position for the opposition leader.

Some in the media are so confident of this happening that on 10 May, the Standard newspaper carried the headline: Why Kenya is headed to a third referendum. It should be noted, however, that not all constitutional changes require a referendum. The constitution envisages three modes of amendment: popular initiative, parliamentary initiative and referendum. The latter is only needed to change provisions contained in one of the ten areas "protected" under Article 255(1).

The 2010 constitution is not perfect and experts have noted areas for improvement. But many are concerned that if the constitution is significantly altered, it is likely to lose some of its most progressive provisions in the process. Any constitutional amendments that result primarily from elite consensus will almost surely concentrate on protecting their interests. Such changes are likely to erode important gains associated with the passage and implementation of the 2010 constitution.

If there is movement toward amending the constitution, a broad civil society-led coalition will be needed to safeguard its progressive provisions, including the Bill of Rights. Civic education is needed to ensure citizens understand the issues and the risks.

To be effective, Kenya's civil society will have to instigate a broad discussion with local and international partners to agree on the roles they will play in this emerging scenario. Ultimately, citizen participation is the key to safeguarding the constitution and protecting key provisions that are essential to progress in the governance, democracy and human rights arenas.

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