• Experts hold that a number of issues being touted in the change clamour are already encompassed in the current constitution.
•The experts further took a swipe at Parliament accusing it of acting like a rubber stamp of the Executive.
Image: EZEKIEL AMING'A
The clamour for constitutional change is a red herring that politicians are using to mobilise voters for the 2022 elections, according to some legal experts.
Veteran law scholar Yash Pal Ghai and lawyer Abdikadir Mohamed said the 2010 Constitution should not be tampered with unless the proposed changes are satisfactory.
They said that a changed structure – from presidential to parliamentary – would not yield much if leaders do not live by the values already spelt in the current law.
They spoke at a meeting with MPs at Parliament Buildings yesterday. They said a number of issues touted in the clamour for constitutional changes are already encompassed in the Constitution.
Abdikadir, a former legal adviser of President Uhuru Kenyatta, warned that the country lacked a strong political party system to guarantee stability in a parliamentary system of governance.
“We have a political culture that is ethnic-based. But whether we adopt a parliamentary, presidential or hybrid system, we must abide by the requirements of the Constitution,” the former Mandera Central MP said.
“I don’t ascribe any ill-will to the persons pushing these proposals but they are more political expedient views than genuine shortcomings of the Constitution,
“We have taken long to review the Constitution because we use (it) as a tool of mobilisation for the next election than solving our issues, which is the same case this time,” Abdikadir said.
He said the elephant in the room is the deliberate actions to sabotage the Constitution, especially Chapter Six of the supreme law.
“Issues like ethnicity and inclusion cannot be sorted out by changing the Constitution. We can't use the Constitution to achieve short-term political gains,” the lawyer added.
Abdikadir was the chairman of the parliamentary committee on constitutional affairs that drafted the 2010 Constitution.
Ghai said he was not enthusiastic about a president with executive powers.
Both concurred that the country and its leaders only need to implement the law fully before pushing for changes to the nine-year-old supreme law.
Ghai argued that politicians have over the years remained “narrow” in their thoughts about implementing the Constitution.
“I am not too enthusiastic about a change in the basic framework. I would very much like to move to a parliamentary system as we proposed in Bomas,” the law scholar said.
“I had also suggested that we should have a president who is not completely ceremonial but have certain roles under a parliamentary system.”
Ghai said if anything, it is politicians who should change and act in the manner outlined by the Constitution.
I don’t ascribe any ill-will to the persons pushing these proposals but they are more political expedient views than genuine shortcomings of the ConstitutionAbdikadir
Abdikadir dismissed the cost-cutting drive on which the Thirdway Alliance leader Ekuru Aukot’s Punguza Mizigo is grounded.
He said that reducing the number of elective posts would not yield much savings. The country should instead deal with wastage in government.
“Reducing the number of MPs and MCAs would only save the country three per cent of the national expenditure,” Abdikadir said.
Jill Cotrell, who accompanied Ghai, raised concerns about the process taken by the Punguza Mizigo proponents saying it was flawed.
The experts told the Constitutional Implementation and Oversight Committee (CIOC) chaired by Ndaragwa MP Jeremiah Kioni that nothing much would change as the old set-up has worked against the new system.
They cited the lack of independence of the Judiciary, Police Service as well as the National Land Commission.
The experts took a swipe at Parliament, accusing it of acting like a rubber stamp of the Executive.
The House, more so the National Assembly, was put on the spot amid concerns it has abdicated its budget-making role to the Treasury.
The lawyers castigated MPs for failing to implement the Constitution beyond enacting Schedule Five, save for the law providing for representation of special interest groups.
Parliament was also accused of delayed adoption of audited accounts and of the hitches in implementing the Equalisation Fund’s tenets.
The experts, however, acknowledged that the 2010 Constitution has challenges, citing the trouble with the structure of the Senate and National Assembly.