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December 19, 2018

Amending the Constitution or amending politicians?

Retired President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Former  Attorney General Amos Wako Photo/file
Retired President Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by Former Attorney General Amos Wako Photo/file

Until recently, a favourite occupation of politicians (in the wake of disputed elections) was to agitate for amending the 2010 Constitution.

Well before the elections, Raila Odinga took this matter so seriously that his colleagues and staff prepared a lengthy set of amendments and secured (or thought they had) a million signatures of voters in support, to initiate a constitutional amendment by “popular initiative” ( Article 257 ). . The process itself is complicated: Support of at least a million voters, a majority of the county assemblies, and the majority of both Houses of Parliament (failing the last, the support of the people in a referendum). At that time, other parties were critical of this initiative, as I was, for a different reason — it was too soon after the promulgation of the Constitution. Nothing happened as the IEBC ruled that there were insufficient signatures.

Now, there seems to be some consensus among major political parties for the replacement of the executive presidency by a parliamentary system. During the constitution-making process 18 years ago Raila and William Ruto supported the Westminster parliamentary system. As did Kibaki, in his submission to the CKRC, he vigorously attacked what he termed the “imperial presidency”. But his position changed 180 degrees once he tasted the flavour of the executive presidency following the 2002 election. Although he won with the support of Raila (Kibaki Tosha), he changed the Bomas draft to executive presidency, and abolished devolution. The issue of the executive system arose again when the Committee of Experts reviewed the Bomas and Kibaki (misrepresented as Wako) drafts following the violence of 2007 election. The CoE’s recommended parliamentary system, but conceded to political parties’ unanimous support for the presidential. Now, blaming the Constitution, politicians want a parliamentary system, but have given no indication of other changes.



Because it is clear that few politicians have read the Constitution (but all are ready to blame it), I was very pleased to see the headline of Governor Kivutha Kibwana’s article: “Why in spite of new laws (meaning Constitution), we’re aggrieved”. I thought he would blame the politicians for our predicament — but not so. I missed, at first, the subtitle in small print over the heading: The 2010 Constitution has not cured all of the ills, let’s renegotiate it. He tries to demonstrate by 10 deficiencies in the Constitution, some of which I discuss now.

1. ‘Electoral justice must be realised in all its manifestations” Absolutely, but whose fault is our current plight? Certainly not the Constitution which sets out the electoral process in great detail to remove all the malpractices that accompany our elections, including bribes, tribalism, intimidation and violence. Instead, parties must have broad, countrywide support so that they transcend ethnicity. These provisions are regularly violated by almost all parties and the IEBC has done nothing to stop them.

Kibwana advocates reviving an old model of an electoral management body: Members nominated by political parties (no serious attempt at independence). Various countries have such a model; it did not work for us during the 2002 election. We do not have sufficiently stable “sides” in Kenyan politics and there is no guarantee that such an institution would not be like the IEBC, divided on party lines.

Kibwana also advocates a proportional voting system, to ensure that elected bodies more accurately reflect the way the people have voted. This was removed from the CKRC draft Constitution at Bomas.

2. “The governance system requires restructuring”— referring principally­ to the replacement of the parliamentary system which the politicians threw out, replacing it with the executive presidency. 3. “Independence of the independent commissions must be buttressed….to curb the over-concentration of executive power”. The constitutional provisions are perfectly adequate in their functions, independence and resources, but the politicians, particularly the government, will not let them operate according to their mandate, as Kibwana well knows and acknowledges.

4. “Strengthening party coalition – building mechanisms through political party reforms is critical”. No law can tell parties to form a coalition — this is a matter of politics, as it should be. Nor does Kibwana explain the values of coalition — they often work against a vibrant democracy.

It is true that party reforms are needed — the Constitution already requires many reforms, which the parties have disregarded.

5. “A dialogue that addresses the scourge of negative ethnicity to pave way for the flourishing of the Kenya nation is key”. This does not seem to be addressed to constitutional change, but the behaviour, primarily, of politicians. The Constitution makes heroic efforts in numerous provisions to make of us a united nation while at the same time promoting the diversity of cultures and religions. But politicians stir up ethnic hatred as a device to win elections. All major parties have violated numerous provisions of the Constitution as regards ethnic harmony — and the independent commission to promote ethnic harmony has ignored these violations — for political reasons.

5.“We must decisively deal with corrosive corruption.” Again, it is hard to imagine another Constitution that places such emphasis on integrity of all state officers and a strong mechanism for investigation and prosecution of corruption. Politicians and public servants, in cahoots with teh business community, are the principle source of corruption — would Kibwana like to give them greater powers?



It is of interest to note that all discussions among the politicians on constitutional amendments focus on power sharing between politicians (of key political parties), and how they can increase the grease to themselves. Kibwana does mention as one goal, to attain “true economic justice for all” but conceives of it in terms of “equitable sharing of the national government component of budget”. Nothing about the broader issues of social policies that are necessary to ensure minimum well being of all Kenyans—not something that interests politicians.

Every “change” that he advocates is clearly and extensively provided in the Constitution. It is time that he acknowledges that the “constitutional” problems he and other politicians are listing is really a device to hide the abominable conduct of politicians who regularly transgress and violate the Constitution and other laws—and to confer even greater authority upon politicians. In an article in the Nation by John Ngirachu, Kibwana comes out as a tribalist when he reminds the Luo that in 2022 it is the turn of the Kamba , in fact Kalonzo, to assume the presidency. The Luyha feel the same about Musalia Mudavadi. On the Jubilee side, the top Kalenjin are reminding the Kikuyu that 2022 is their turn to have the presidency through Ruto, as the Kikuyu work out their strategy to keep the crown at home.

This attitude of tribal-oriented politicians towards a united nation Kenya is hardly a qualification to amend the Constitution. In fact their dominance of the process is little short of disaster. The 2006 Bethwel Kiplagat Commission set up by Kibaki to review the previous constitution-making processes found deep distrust of politicians by the people, especially in constitution-making. The CoE faced similar narrow perspective among politicians — much was lost in the process. On the other hand, the civil society driven processes were more broadly oriented, fighting for democracy, social justice and human rights. The best process was Bomas, with all key interest groups represented, and discussions and decisions made in public.

I do not believe the Constitution is perfect — far from it — thanks to the intervention of politicians with the Bomas draft after 2008. I consider that time has come for a review of its working. However, I would not trust politicians to undertake this task, as their own interests are deeply involved. Leave it to the people, who after all are sovereign.





Ghai is a constitutional lawyer













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