Let's dialogue before we go the referendum route

My natural instinct is to be suspicious of the intentions of politicians, especially when they claim to be seeking the public good. However, being a long term "stakeholder" in the reform process, I will give promoters of the Okoa draft the benefit of doubt.

Despite my instinctive suspicion, I will choose to believe their intentions are honourable and that they desire to accomplish positive reforms for Kenya. Their choice of a referendum as the route to reforms is a legal and justifiable way to pursue change. In any event the Constitution is not like the law of the biblical Medes and the Persians, which could not be changed once passed.

The Constitution of Kenya 2010 was passed by men (and women) and so contains some of the idiosyncrasies and contradictions of the Kenyan Nation State. It will therefore require constant re-looking and re-consideration. The closure of gaps and resolution of contradictions has in any event been occurring through several momentous court decisions that have given varying interpretations to the Constitution. Other gaps have been resolved and will continue to be resolved by Legislation.

The conversation we must have as a country is the point at which these other avenues of continuing the reform journey will need to give way to constitutional amendments, including costly referenda. This national conversation, which unfortunately Okoa has compromised by placing referenda questions on the amendment track, revolves around two realities.

In the first instance due to what can only be defined as providence, Kenya ended up with a consensus Constitution. We all know many events conspired to bequeath Kenya a political compromise that then gave birth to a consensus constitution. The birth of the Constitution via political consensus is the reason why the Constitution has legitimacy and acceptability throughout Kenya.

The 2010 Constitution remains the only "institution" which finds support in my home in Kora village, in distant Kehancha, dusty Modogashe and serene Lamu almost in equal measure. This national acceptance is actually more important than the Constitution's content. It is the basis on which one can build constitutionalism and integrate constitutional values. It is the route through which we can build uncontested institutions and implement uncontested programs. Consequently, any attempt to make the constitution the subject of contested and fractious politics must be resisted.

A constitution with winners and losers is always a transitory document, awaiting changing of power dynamics to be amended. That cannot be good for Kenya's institution building stability. Could the contested manner in which we are moving have been avoided?

Substantial blame goes to the Jubilee government for having rejected the proposal by CORD to enter into dialogue on reforms. Had this process materialised, we would be probably be considering a consensual amendments package or even reforms that avoid constitutional amendments.

Of course I am not so naïve as to assume that CORD was genuinely interested in an objective dialogue process. Indeed some of its leaders' public pronouncements at that time pointed to a different intent. But as the Government in power, Jubilee owed it to the country to sit with its nemesis. Should dialogue have failed due to CORD's intransigence, Jubilee's "statesman" profile would have been enhanced and it would have better reform credentials.

I believe though that all is not lost. Before we slide down a referendum track, I beseech our leaders from different political persuasions to give dialogue a chance. The other reason why we must be careful about vigorously contested constitutional amendments is that in a contested referenda of the kind we are heading to, the merit of issues are quickly sacrificed on the altar of politics. Whatever the Okoa Committee of Experts may say, this will end up being a contest of politicians.

Once the drums roll, no one will really care about the substance of the Okoa Bill's proposals. Consequently, if the draft is lost through politics, even its progressive proposals will be lost. If the draft wins the day, we will end up with the good but also with the preposterous clauses, including the one that allocates the Administration Police to the Governors and appoints Electoral Commissioners through political parties! Let us try some dialogue before the silly season starts.