COE: Where was the expertise in Constitution making?
Since the promulgation of the Constitution in 2010, Kenyans have tried to interpret it in a myriad ways, sometimes with a little help from the Legislature.
However, activism, mostly on the part of politicians, seems to slow down the much-needed reforms.
‘ Constitutional experts’, lawyers and even lawmakers have been known to make varied interpretations of the new law. It is many times that goal posts have been changed to suit their partisan and personal interests and not in the spirit of the Constitution.
This informs how little expertise was put into play during the making of the Constitution; other than a show of internal bickering that was at the time amongst the members of the Committee of Experts (COE).
This has resulted in sharp division of opinion among Kenyans of all walks of life.
As things stand, it is evident that what fueled the Constitution making was personal vendetta as far as some individuals and offices are concerned, and not much was injected in it for the intended purposes of nationalism. In fact, Constitution making started on the wrong footing when none of the serving officers from the three arms of Government was included in the COE to provide insights on governance.
In this case, the Members of Parliament are to blame. And that there were constitutional rewards for those sections that threatened to shoot it down, particularly teachers and the councilors to entice them into voting for it.
There are various grey areas in the new Constitution that not even the court is able to sort adequately because it has the errors of ‘original entry’. The COE had ample time for and membership to have done a better job than this. The Constitution is for Kenyans, not for the COE.
Quite a number of principles of constitutionalism were blatantly ignored. For instance, the principle of definitiveness; there is no definite answer to constitutional questions that may arise.
There is also the principle of economy. The implementation of the Constitution is very costly especially in terms of recurrent expenditure much to the detriment of capital expenditure. Democracy need not be expensive.
Lastly, there is the principle of brevity, which means that the Constitution should be brief and to the point; subsidiary legislations only serve to expand its contents.