Kenya: Push for Constitution Must Be Meaningful

27 October 2020

Yesterday's official launch of the Building Bridges Initiative (BBI) report sets the stage for constitutional reforms. The 2010 Constitution was purposely designed to redraft the country's socio-political and economic landscape.

Many gains were realised, but challenges persist. The reality is dawning on Kenyans that the country cannot continue on the existing trajectory. This is the reason the country is entering the constitutional moment.

The task ahead is herculean. Implementing various proposals in the document will require different approaches. Whereas some are administrative and legislative, others are constitutional and must go through a referendum. And therein lies the first hurdle: Referendums are always bitterly contested and winning or losing is equated with political might.

Fortunately, listening to the political leaders this time round, there is a change of heart. There is a desire for a non-contested referendum, widespread public participation and inclusivity. That is an ideal scenario to achieve. But achieving that requires goodwill, which is an outcome of trust, openness and fair play.

Fix endemic problems

Some of the proposals in the report are laudable as they promise to fix endemic problems. Even so, some require revisions and fine-tuning. And that is at the heart of constitution-making. It's always a work in progress. For the Constitution is a living document that, at every epochal moment, has to address needs and desires of society.

The genesis of this new constitutional order is well documented. It arose from the desire to cure perennial and cyclic violence that follows every election.

This is because the way politics is organised is ethnicised and exclusionary. The winner takes everything while the loser is condemned to political oblivion. Consequently, contestants cannot fathom a loss.

For this reason, the BBI proposes to expand the government by reintroducing the position of Prime Minister, with two deputies, and Leader of Opposition, complete with a shadow cabinet. It also seeks to deepen devolution by raising capitation to the counties, essentially to enhance service delivery and ensure people at the grassroots benefit from their taxes.

Engage candidly

Kenyans must engage candidly with the document. While it is acknowledged that it has solid provisions that offer a promise to the country, there are issues that have to be re-examined and fixed. Top of these is loading more powers to the presidency and negating the prevailing principle of dispersal of powers to various institutions and agencies.

As presented, the President will have powers to appoint the Prime Minister and two deputies, Cabinet secretaries and Judiciary Ombudsman. All these serve to concentrate powers on the presidency, which is a claw-back on reforms already made in governance.

Notably, appointing the premier from the coalition with the largest number of MPs is likely to work in favour of the President and fail to cure exclusivity. To avoid creating an imperial presidency, such provisions should be revised, besides divesting powers from the office to make it less attractive.

The proposed composition of Parliament, including abolition of nominated MP posts, requires a rethink. The role of the Senate in deepening devolution and having oversight over counties has to be enhanced, not diminished as proposed.

President Kenyatta and Opposition Leader Raila Odinga underscored the fact that the reforms are not about power and resource sharing. We want to believe them. But the true manifestation of that would be when they deal with negative ethnicity and marginalisation. Inclusivity should have real meaning and politics built around ideologies and idealism, not ethnicity or parochial and sectional interests.

Political leaders who are scheming to manipulate the constitutional debate to further own interest should be ashamed. We acknowledge that the path to a new constitutional order is slippery; the citizens must be acutely alert and stop politicians from dictating terms and manipulating the process.

But beyond constitutional change is the principle and spirit. A veritable oddity in our context is having a Constitution without the spirit of constitutionalism.

Several good provisions in the Constitution are never realised because we do not believe in them. The push and delivery of a new constitutional order must, therefore, be meaningful.

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