Shortcomings of the BBI’s constitutional amendment Bill

In sum, the BBI Constitution of Kenya (Amendment) Bill, 2020 is good. But like many other documents, it also has its shortcomings.

The first shortcoming is that there is too much unconstitutional stuff in it. By this I mean things that should not be found in any serious constitution. Here is why this is the case:

Kenyans have been lured to think and believe that a constitution is a document that speaks to bread-and=butter issues. This is wide off the mark. Ideally, a constitution is a political document wholly concerned with how the people want their government to be structured, power and functions to be distributed — among the three arms of government — and elections to be held.

The danger in viewing a constitution as a document that speaks to bread-andbutter issues is that you’ll always end up producing long and novelish constitutions, such as the 2010 Constitution, full of contradictions, hard to implement and an end in itself.

A constitution need not be long. The American, Norwegian and Vatican constitutions would surface as some of the shortest constitutions in pages.

The BBI amendment Bill has, however, failed to cure this perception and will end up adding more pages to the 2010 document. That the bill recommends amending the Constitution to include issues such as citizen’s responsibilities and issues as raised by farmers and pastoralists is dead wrong because these are not constitutional issues.

Most of these issues can be established and implemented by Parliament and the Executive.

Over and above that, constitutions are not an end in themselves but a means to an end. The problem with our Constitution, and the amendment bill is that they are assumed to be an end. That’s why everyone wants his or her views contained in the Bill. But to avoid this, constitutions must be founded on a commitment.

However, the sad reality is that most African states adopted constitutions, after independence, not because they wanted them to act as a catalyst to an end but because it was a tradition to have a constitution. That is why we have — what Professor Okoth Ogendo referred to as— constitutions without constitutionalism.

The respectability of the Constitution can only be there when there is a commitment the supreme law is trying to pursue. Americans are committed towards liberty and equality for all. Our forefathers were committed to ending poverty, disease and ignorance before being corrupted by power.

Second, as much as the bill deals with the question of inclusivity by the creation of several Executive positions, the Bill has failed to boldly draw a clear line between the powers of the President and the proposed Prime Minister.

In the minds of Kenyans, a Prime Minister is ideally a very powerful individual. However, the bill establishes an office of Prime Minister that, in practical terms, has too much authority but very little power.

The Prime Minister, as in the bill, is not just weak but a pale shadow of the kind of PM that Kenya needs. And this is a major shortcoming. In one of her newspaper columns, Daisy Maritim argued that one of the major shortcoming with the 2010 Constitution was establishing the Office of the Deputy President that in reality has too much power but very little authority. And because of this, the DP remains largely an idle man and thus a threat to peace and stability.

A very weak PM will not go well with Kenyans. Within no time, Kenyans will be back at the drawing board to discuss this very issue.

Be that as it may, the Constitutional Amendment Bill is good for country considering it solves, partially, the challenge of winner-takes-all and inclusivity. That we are attempting to deal conclusively with the problem of divisive elections is a good thing.

Bruno Otiato is a Political Science student at the University of Nairobi[email protected]