- With little or no dissent, the process of shaping the contours of the Constitution should be treated cautiously lest we consent to a Faustian pact.
- Blanket propositions will wither away the efforts of the many Kenyans who fought tooth and nail to achieve our current democratic space.
The theme of constitutional change dominated the President’s speech to the nation on Madaraka Day.
To spur prosperity and achieve new feats of enterprise, he posited, it was imperative that we rethink our nationalistic covenant.
Although calls to amend the Constitution are not far-fetched, it should not be lost that the process of constitutional change and making should be done with a modicum of earnestness and sincereness.
From the onset, it is imperative that the process is viewed from a social contract perspective. The 2010 Constitution is the social contract by which Kenyans agreed to give authority to their elected sovereign on condition that he or she uses it for the common good.
Any alteration to the terms of the social contract, even through their elected representatives, must be for the general good and happiness of the people. The greatest happiness of the majority of Kenyans should outweigh the combined pleasures of our ruling elite.
The President has urged that the current constitutional make-up is not ideal for our aspirations as a country. Other notable politicians and political parties, including the official opposition, which ought to be the voice of dissent and critique, have joined the bandwagon and echoed this perspective.
The voices of dissent against the intended amendments have diminished to oblivion. With little or no dissent, the process of shaping the contours of the Constitution should be treated cautiously lest we consent to a Faustian pact.
We should also keenly consider the rationale for amending our Grundnorm. The President has repeatedly cited the post-election chaos that marred the soul of the state in a number of occasions as the basis of constitutional change.
No doubt, no citizen would wish to face the horrors of the 2007-08 political skirmishes. However, the electoral and political ethos at the time largely contributed to the turmoil and violence. Lack of a sacrosanct electoral body and political immaturity have been the core causes.
Further, before we rush into the modalities of amending the law, we ought to examine truthfully the instances where the current constitutional framework has proved to be a setback.
Blanket propositions will wither away the efforts of the many Kenyans who fought tooth and nail to achieve our current democratic space. Any proposition must identify the problem, propose the solution and be open to public debate and scrutiny. The price for renegotiating our social contract should be full disclosure.
Any personal or political red herrings should not see the light of day. It is still in our living memory that our independence constitution was mutilated by politicians to serve their personal selfish interests.
As and when the proposed amendments come to the fore, we should check for the devil in the details. Even the most plain of amendments should be considered with great detail and their possible consequences thought out carefully.
Finally, to what end then, should the constitutional changing process aim? In a country where there is a co-existence of great wealth and great poverty, the critical aim of constitutional revision should be alleviating poverty and suffering of its citizens.
Like Augustus’ Rome, our constitutional energies should be directed at changing Kenya from a “city of brick to a city of marble”. The law should enable more Kenyans move from being earners of wages to owners of capitals, from people with talent but no fortune to people of talent with fortune. This dream is indeed achievable by being earnest in the constitutional changing process.
Advocate of the High Court