FIXING THE FLAWS

BBI must be implemented by any means - even if we look the other way

Even good people will look the other way if the means were less than something to write home about because BBI is good for the country

In Summary

• Prof Yash Pal Ghai and the other experts admit  the end product was not exactly what they had in mind.

• Many knew that even with passage of the much-heralded new Constitution, there would come a time to yet again fix it address its various flaws.

President Uhuru Kenyatta reads the initial BBI report.
BBI BOMBSHELL? President Uhuru Kenyatta reads the initial BBI report.
Image: PSCU

Kenya’s Independence was negotiated during the Lancaster House conferences in 1960, 1962and 1963.

The last conference resulted in an agreement on a constitutional framework of an independent Kenya, ending more than 70 years of colonial rule.

A question that often comes up is, are we better off as independent countries than we were during the colonial rule?

 

The short answer is, yes. There is nothing compared to living under the bondage of colonial rule, but if we chased out the colonial masters, we replaced them with beasts who are just as bad in their exploitation of the poor.

Many of the social and economic ills that bedevil the country can be traced back to the country’s independence constitution.

One of the early on mistakes we continue to pay a price for is the adoption of a constitutional framework more suitable for established democracies and ill-suited for a young country.

For example, constitutions for countries such as the UK  or the US make it virtually impossible to amend.

This same principle was cut and pasted into our 1963 Constitution such that, even though there were numerous amendments made to that version, none touched on the core of what was wrong and it remained so until it was overhauled in 2010.

Our Constitution underwent its first amendment in 1964 and the second in 1966 when the bicameral parliamentary system was combined to create a unicameral National Assembly.

Those amendments, however, left intact an imperial presidency alongside a provincial system the president and his successors used to exact loyalty and obedience.

The provincial system also formalised tribalism, which continues to rear its ugly head to this day. This is despite the system being replaced in 2010 by devolution.

Prior to 2010, amendments that had any consequential impact (unfortunately, in a negative manner) were those that ended the multiparty system and ushered in the one-party state rule and later reversal of that system to reintroduce a  multiparty political system in the 1990s.

 

All other efforts to amend the Constitution, especially those aimed at curbing presidential powers, were futile because (a) the cut-and-paste requirements to amend the constitution were onerous and (b) the immense powers a president had under the old Constitution simply cowed MPs, let alone the public, from clamouring for change.

Those who tried to agitate for change such as Kenneth Matiba, Charles Rubia, Raila Odinga, George Anyona and others suffered arrests, torture and long detentions without trial.

Their efforts and sacrifices paid off as we finally had a new Constitution in 2010.

Prof Yash Pal Ghai, an authority on constitutionalism, led the efforts to revamp the Constitution but even he and the other experts who advised the government will readily admit— and they have said as much — that the end product was not exactly what they had in mind.

The good professor and many of us knew even with the passage of the much-heralded new Constitution, there would come a time to yet again fix it to address its various flaws.

That time is nigh and the vehicle to do that is the Building Bridges Initiative.

However, given the cut-and-paste and ill-suited onerous provisions in the Constitution that make it virtually impossible to amend, there is a real possibility that a referendum to pass BBI could fail.

Given this, and given the fact that BBI is good for the country, the government must have it passed by any means, and even good people will look the other way if the means were less than something to write home about.

Samuel Omwenga is a legal analyst and political commentator.