In
the 90s, amid stringent calls for a people-driven constitution, Kenya
embarked on a startlingly unique adventure: to replace its current
constitution with a spanking new one. 2 decades and several billion
shillings later, the journey seems no closer to completion. Throughout
all this, one thing has remained a mystery to me. The called for
changes could have been achieved far more cheaply and quickly through a
series of Constitutional amendments enacted by Parliament without
having to start the whole process from scratch. So why did we chose the
vastly more expensive, and ultimately unfruitful, option? What's wrong
with piecemeal amendments?
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One of the three Lancaster House Conferences in which
Kenya's
constitutional framework and independence were
negotiated in the early 60s. Photo: CC
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In
a word: nothing. The 90s debate over "piecemeal" or wholesale
people-driven constitutional reform obscured an important fact. The
current constitution is itself the result of numerous amendments to the
Independence constitution. In fact, in the 30 years between 1963 and
1992, the Kenyan constitution was amended 28 times. In contrast, in the
same period the US amended its constitution all of 4 times, and has
only done so on 27 occasions throughout its 200 year history.
Though
the changes to our constitution have been of a piecemeal variety, they
have rewritten the power map so dramatically as to have the effect of
creating a new constitution. A comparison of the Independence and
present constitutions bears this out. This was achieved in a relatively
short time and at little expense. There was no collection of views, no
referendums required to endorse the outcome. However, no one doubted the validity and legitimacy of the consequent document. And
the attempt to replace it has highlighted another of its core
strengths, a prerequisite for any successful constitution: it has
proven resilient in the face of numerous attacks on it. It survived
despite the overwhelming national consensus that we needed a new one.
Despite its many failings, it has kept us together as a nation and, I
think, we should not be in too much of a hurry to cast it aside.
Some
will doubtlessly argue that piecemeal amendments would have suited our
dear politicians who are only too fond of (ab)using the document to
settle their political differences.
After all, they would point out, the fact is the majority of the
amendments to the Kenyan Constitution have addressed issues that were
not of a constitutional nature.
According to "Amending the Constitution -Learning from History", a paper presented by Dr. Githu Muigai at an International Commission of Jurists conference in 1992,
the concept of the constitution and of constitutionalism were, to begin
with, completely alien to Kenya. "The colonial order had been one
monolithic edifice of power that did not rely on any set of rules for
legitimization. When the Independence constitution was put into place
it was completely at variance with the authoritarian administrative
structures that were still kept in place by the entire corpus of public
law. Part of the initial amendments therefore involved an attempt -
albeit misguided - to harmonise the operations of a democratic
constitution with an undemocratic and authoritarian administrative
structure. Unhappily instead of the latter being amended to fit the
former, the former was altered to fit the latter with the result that
the constitution was effectively downgraded."
However,
the comprehensive reform route has fared no better. For example,
another reason for the constitutional amendments of the 60s and 70s was
to strengthen the executive and through it the provincial
administration as a possible panacea for the instability of the KANU
Government. The divisions within the party and government were dealt with as if they posed constitutional issues.
Sound familiar? In this decade we have seen this re-enacted. The debate
in Bomas over the proposed powers of the office of the Prime Minister
was largely defined by the divisions within the NARC coalition. The
infamous MoU, a power-sharing agreement between politicians, was
suddenly the centre of a constitutional controversy. In fact, the 2005 referendum was less about the Constitution, and more about the internecine struggles within NARC.
In
the light of the foregoing, it is plain that the long-term process of
shaping and reinvigorating our constitution has been hijacked by the
short term interests of the political classes. And while our
politicians are not to be relied on when it comes to promises of a new
constitution, in the service of their stomachs they have demonstrated
that piecemeal changes are a most efficient means of effecting change.
Over
the last 15 years, we have witnessed a number of amendments that have
improved the constitutional climate without requiring referendums and
view-collecting. Now, as the Committee of Experts on Constitution
Review sets about spending a further 300 million to tell us what we
already know, perhaps we should rewrite their mandate. Why don't they
simply propose certain specific amendments to the current constitution,
which amendments Parliament could speedily (and inexpensively)
undertake? Thus we can quickly ring in badly needed renovations to our
constitutional facade before the next elections.
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