HANDSHAKE POLITICS

We’re walking into a trap—BBI

A constitution is only as good as how difficult it is to change it.

In Summary

• In the history of democratic regression in Kenya, the problem has not been the absence of rules to restrain power-hungry heads of state

• We, the people, did not demand any changes to the constitution before Uhuru Kenyatta and Raila Odinga shook hands and announced this initiative.

We’re walking into a trap—BBI
We’re walking into a trap—BBI
Image: OZONE

Let’s take a step back and think for a minute. Let’s remember the passionate angst of Kenyan citizens in the 1990s, the clouds of teargas that greeted those who went to the streets to demand that the ballot paper should contain the name of more than one political party. Let’s remember how frustrating it was that the president could simply snap his finger and Kenya’s consitution allowed multiparty politics, snap it again and the country was back to a one-party system.

Because this was the stunning arbitrariness of the rules that animated the grassroots energy that paved the way for the historic constitutional conference at the Bomas of Kenya, where the highly representative gathering of delegates resolved to make it extremely difficult for the head of state or government to unilaterally change foundational political rules in his or her favour.

It was in this energy that Kenyans, for the first time, made it known to the country’s political leadership that they intended to subject everyone – including and especially the head of state – to the rule of law, and Kenyans seemed to have fully realised that rules are not really rules if they can be changed at will by those who ought to follow them.

 

In the history of democratic regression in Kenya, the problem has not been the absence of rules to restrain power-hungry heads of state: the issue has been that those rules have always been so easy to change. Just after Independence, there were constitutional mechanisms to limit presidential power by devolving authority to the regions and placing key parliamentary checks on the Executive.

What is the origin of the BBI? Where did it come from? Could it have come from the same place as the post-independence amendments which consolidated Jomo Kenyatta’s absolute power? Could it have come from the same place as the amendments which made Kenya a one-party state in 1982?

That constitution also abolished the provincial administration, the ruthless system of arbitrary rule the British had relied on to maintain control in Kenya. But Jomo Kenyatta enjoyed virtual carte blanche to amend those rules, and in taking the extremely retrogressive acts of getting rid of devolution, clamping down on parliamentary powers and reinstating the provincial administration, the founding president was technically operating wholly within the law.

Neither was Moi breaking any laws when he officially made Kenya a one-party state in June 1982. He technically possessed the legal authority, backed by an overwhelming base of worshippers in the Kanu-dominated parliament, to amend the constitution as he pleased. This should make one thing clear: A constitution is only as good as how difficult it is to change it. You can have a constitution with the most liberal provisions in the world, but if the whims of a head of state are all it takes to amend those provisions, then they are next to useless.

It is precisely for this reason that the framers of the 2010 Constitution provided that amendments would have to be thoroughly scrutinised and only approved by a parliamentary supermajority or an affirmative result in a nationwide referendum. You, the Kenyan voter, were given the power and responsibility to ensure that future presidents would not be able to sit behind their desks and unilaterally orchestrate changes to the constitution like Jomo and Moi had been able to do, the very means by which, piece by piece, they dismantled key safeguards to our rights and freedoms.

What is the origin of the BBI? Where did it come from? Could it have come from the same place as the post-Independence amendments which consolidated Jomo Kenyatta’s absolute power? Could it have come from the same place as the amendments which made Kenya a one-party state in 1982?

Yes indeed. These are all initiatives that originate from the president’s desk, not from any grassroots movements, not from deliberations in our public and privates spaces. We, the people, did not demand any changes to the constitution before Uhuru Kenyatta and Raila Odinga shook hands and announced this initiative. And if you, the Kenyan voter, ratify these proposals in a referendum, you’re providing a dangerous precedent that will enable presidents to unilaterally orchestrate changes to the constitution once again.

Even if the BBI proposals themselves carried exceptional merit – which they do not – the manner in which State House wants to push them through makes them irrelevant to the debate: They would be as easy to get rid of as they were to put in place if we set this dangerous precedent.

We must oppose this process so that it doesn’t even get to a referendum, but should things get there nonetheless, we should deliver such a strong repudiation of the BBI at the ballot box that it would become political suicide for any future president to attempt to change the constitution in this manner again.

 

Amending the constitution should be an extremely difficult and rare thing to do, but voting for these proposals would clearly show the political class that this is not the case any longer. Get ready for them to exploit that knowledge to further mutilate a constitution that took years of blood, sweat and tears to put in place.

Even if the BBI proposals themselves carried exceptional merit – which they do not – the manner in which State House wants to push them through makes them irrelevant to the debate: They would be as easy to get rid of as they were to put in place if we set this dangerous precedent.

Let proposals to change the Constitution, if there should be any for the foreseeable future, emanate from the people. Let them arise organically from day-to-day discussions in our schools, universities, churches, mosques, newspapers and town halls.

Let those discussions then sip into the formal political sphere where they can be taken up by political leaders, who should explicitly state while running for office that they would call for a constitutional referendum should they be elected to office. The people would then signal, via the ballot box, whether that would be a path worth taking.

Until then, it is our duty to show the political class, should there be a referendum, that we intend to have rules in this country, real rules, and they don’t get to decide when to change the rules. We do.