Kenyans should base law review on common good, not narrow interests

NAIROBI: Despite being overshadowed by the Kenya Certificate of Secondary Education (KCSE) exam results and the charging of high-profile Anglo Leasing suspects in court, the proposed bid to change the date of the next elections was a key news item  this week. You see, the 2010 Constitution places the date of the 2017 polls in August. But the legislators, perhaps keen to extend their tenure by a few months, almost unanimously agreed on the extension of the date. The reason given was that Kenyans have for the longest time voted in December. Plus there was that argument that having elections in August (can you beat that?) would disrupt the school calendar. Some even suggested the date could be pushed to December by a two-thirds majority.

That was until the Commission for the Implementation of the Constitution stepped in and said, nonsense, you can only move the date through a referendum. There was also the small matter of the current Independent Electoral Commission team, whose tenure ends after the August date. Trouble is, the opposition wants the team kicked out before the next polls, at which point Jubilee and CORD parted ways.

Now, my interest here is not whether we should vote in August or in December, or whether Jubilee would entertain the idea of going to a referendum, after last year’s suggestion of a plebiscite by the Opposition and the Council of Governors. My worry is that while there is need to refine the document to suit public interest, I’m afraid all shades of frivolous excuses and vested interests – not to mention nostalgia for the old days – may be sneaked in in the name of public interest to tinker with the law.

First, I believe the most crucial factor in the implementation of the Constitution is not the letter or the decidedly well-thought-out wording of the famous 2010 supreme law. It is not even what the lawyers say, but the willingness in our hearts as a nation to embrace change, however radical, if it serves the common good. And so I have been watching. When the Constituency Development Fund (CDF) was kicked out, I went back to the document. My understanding of it is that we are now in a devolved system of governance where, in line with the principle of separation of powers, the legislators are supposed to make laws and the county and national governments, to implement these laws.

Therefore, if we revert to a system where MPs and MCAs control budgets – even indirectly – what will stop governors insisting on doing a bit of legislation? And what then does it say of our willingness to let go of the beautiful coast of the old Constitution so that we can experience the sea adventure of the new one? Make no mistake, though. CDF has really changed lives at the grassroots. It has built schools, hospitals and so on. But that is now, strictly speaking, the work of the Executive! MPs know that, but we have a problem where the electorate still expects them to “bring development to the voters”, failure to which someone will be dropped in 2017. Our people have simply not cottoned to the reality that it is not the work of MPs to initiate development projects.

And it is not only CDF and the poll date that have sparked debate on changing the law. There was even a suggestion that Cabinet secretaries begin to answer questions in Parliament, and even whispers that politicians be appointed to Cabinet posts.

While I fully agree that the 2010 document is not cast in stone and should be refined in public interest, we must guard against tinkering with it to suit narrow ends. It is instructive to note that a lot of sacrifices were made to come up with the new law.

The radical changes therein, we must never forget, were precipitated by the need to subordinate the whims of those in power to public good. Now, if we are so nostalgic about the past, what will stop us from sliding back to the crisis that provided the final impetus to promulgate the new law?

More ominously, if we sneak in every frivolous excuse to tinker with it, what will stop its gradual slide into the fate of the independence Constitution?

We are done here, you can now wrap your meat!