• Where the Constitution has not served Wanjiku well, she must ask, “why?”
• Did we make mistakes in the document, or is the failure a result of reluctance to implement it faithfully?
I concur with leaders who have opined that Kenya faces a constitutional moment this year. The point of departure however, is the character of that moment, and what it calls for from “we the people.”
I have no quarrel with the BBI and for purposes of this article, I do not question the motives behind the initiative and the draft Constitution Amendment Bill.
That said, the constitutional moment for me is the opportunity for Wanjiku to look back and review the implementation of the Constitution. To the extent that it has served her well, I would counsel the old adage, “if it is not broke, why mend it?”
This would be true of a number of constitutional provisions. Included in this are those that have not served her perfectly, (because of improper and inadequate implementation) but which, (to the extent to which they have been implemented) have had a positive impact on her welfare, over the last 10 years.
This is in the context of the Preamble to the 2010 Constitution, of “RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”
Where the Constitution has not served Wanjiku well, she must ask, “why?” Did we make mistakes in the document, or is the failure a result of reluctance to implement it faithfully? In the last 10 years, did those who govern find the document in its radical and transformative character a gross inconvenience?
In not first interrogating the success or otherwise of the 2010 Constitution for the benefit of Wanjiku, we have failed to rise and grab the constitutional moment.
Having missed that moment, we now have before us a document that seeks to make certain amendments ostensibly on the basis that BBI represents the wishes of Wanjiku, as appreciated by the task force.
BBI proponents have sent mixed signals on their willingness to consider views on the document, be they supportive or critical, for consideration.
Any genuine constitutional amendment must, as the Preamble to the Constitution notes be “Exercising our sovereign and inalienable right to determine the form of governance of our country, and having participated fully in the making of this Constitution.”
Making this Constitution must include effecting amendments to it. Anything short of that would be self-serving for the benefit of the promoters. It would be called out as an assault on Wanjiku’s sovereignty. I remain convinced that this cannot be the intention of the promoters of the amendment. With that conviction, I offer some views on the Bill, as it is for an open, honest and robust national conversation.
I consider myself privileged to have had the opportunity to intimately engage with the implementation of the 2020 Constitution. It is from this background that I venture to offer my views as an informed citizen.
There are proposals that as stand alone provisions, I would certainly consider to be an improvement on the Constitution.
I welcome the amendment to Article 140 (2) to extend the period for hearing and determination of a presidential election petition from 14 to 30 days.
So, too, is the amendment to Article 164 to make the Court of Appeal the final Court in election petitions other than presidential petitions.
Another welcome proposal is to amend Article 171 by adding a clause disallowing LSK elected members of the Judicial Service Commission, from practising in the courts and tribunals, whilst in service.
The addition of the Director of Public Prosecutions as an Independent Office, is for me also, a progressive and welcome amendment.
There are a number of other proposed amendments I would readily support.
The flip side is that the Bill contains a number of provisions I consider to be fundamentally offensive to the nature and character of the progressive 2010 Constitution.
At the top of this offensive (and for me unacceptable) list of amendments, is the proposed Article 172A that creates the Office of the Judiciary Ombudsman.
The proposed amendment does not in any way improve on the clear provisions set out in Articles 168 and 172 of the Constitution. Indeed it is difficult to see its intent other than provide a likely avenue of control or interference with the judiciary and judicial officers by the Executive through a compliant Judiciary Ombudsman. It would also almost certainly create conflict and confusion with the role of the Judicial Service Commission.
Perhaps even more suspect, (and equally unacceptable) is the proposed repeal of Article 246, thus removing the National Police Service Commission and replacing it with a Kenya Police Council chaired by the Interior Cabinet Secretary. In the context of the spirit of the Constitution, this proposed amendment is absurd.
An independent Constitutional Commission is removed, and replaced with a Council consisting of only members of the Executive, and members of the National Police Service. In emphasising the absurdity, I am mindful of the provisions of Article 249 on the objects and authority of Constitutional Commissions and independent offices.
Yet another retrogressive proposal is the proposed Article 88 (3A). To have political parties have representatives in the IEBC is undemocratic and totally inconsistent with best practices in international Election Management.
It is a direct invitation to even more divisive elections (beyond the divisions inherent in democratic practice) and would almost certainly result in electoral disagreements worse than have previously been experienced in this country.
All Kenyans, including those who do not identify with Parliamentary Political Parties should be able to acknowledge the Election Management Body, as a neutral and independent arbiter, not representatives of some of the players.
The above examples of what I have described as retrogressive and unacceptable amendments point directly to where the promoters of the proposals got it fundamentally wrong.
Ours is a Constitution of institutions, processes and mechanisms. The question should be, where have these not worked, and why not? How then, do we get them to work and respect them?
Each of the above examples demonstrates intent by the Executive and the political class, to push Wanjiku to lose faith in the independent institutions, and to replace them with processes that certainly do not work for her. Instead, they are convenient and comfortable for those in power.
The proposed amendment bill is not an attractive proposition at all. Perhaps recognising that the Bill does not substantively focus on Wanjiku, the promoters and framers of the document have adverted to some “Wanjiku issues”, but sadly, in a haphazard and cursory manner. Again a few (not comprehensive examples) will suffice:
The proposed Article 11A reads well, but fails to provide for how the state is to be held accountable for the realisation of these provisions.
Read in the context of Chapter Six of the Constitution, in particular Article 80(a), the proposed Article 80(a) adds nothing new.
The Memorandum forming part of the Bill states some very laudable sounding objects and reasons. However a careful study shows in several fundamental respects, there is a large gap between the objects and reasons on the one hand, and the proposed amendments, on the other. Again, a few examples: “Resolve issues of divisive elections arising from the electoral process.”
Aside from the fact of elections being divisive by nature, the provisions in the Bill do not in any way resolve the kind of post-election divisions and conflict witnessed in Kenya in the past.
“Strengthen the structure of devolution and increase resources allocated to the counties”
The Ward Development Fund is not objectionable. The increase in the minimum funds allocated to the counties does not require a constitutional amendment. The question is, why has the national government and Parliament been unable to give these increased funds to the counties, pursuant to Article 203(2)? Why are there, consistently delays in the transfer of funds to the counties, despite the clear provisions of Article 219?
“Provide a mechanism for monitoring, evaluating and enforcement of economic and social rights under Article 43 of the Constitution.”
Beyond the President reporting to Parliament, I see nothing in the Amendment Bill that facilitates enforcing of Article 43 rights.
“Strengthen accountability for public resources and the fight against corruption.”
Again, I fail to see where this is reflected in the body of the Bill.
There are other fundamental provisions within the Amendment Bill, which will not be within the scope of this limited article to comment on, but which I hope to revert to at a date in the near future. These include the proposed changes in the Executive and in the Legislature, and the tortured question of gender equality.
I may be a voice in the wilderness. If we indeed seek to carry the hopes and aspirations of Wanjiku captured in the 2010 Constitution, if we seek to amend it for the good and benefit of the people of Kenya, let us first rise to the occasion and confront our Constitutional moment and ask, what has gone wrong with it? Is the political and leadership class, committed to that document in letter and spirit? Have we done our utmost to faithfully implement it?
If we don’t do this, and if we insist on putting the amendment bill as it is to a referendum, for whatever my single vote is worth, I will, in the name of my five-month-old grand-daughter representing the future, and in good conscience, vote NO.
Charles Nyachae is a judge of the East African Court of Justice and former Commission for the Implementation of the Constitution chairman