By Kamotho Waiganjo
One of the latest developments in the constitutional implementation undertaking has been a renewed clamour for a “clean up” of the Constitution to remove its “myriad contradictions and gaps”. The intensity of this discourse has increased recently as more institutions differ over the full extent of their respective constitutional mandate.
The first serious demand for amendment arose prior to the General Election and related to the gender question. The Constitution requires certain gender “quotas” in Parliament but the electoral system in the Constitution cannot produce those quotas. Next in line was the National Police Service, which desired a clean up to ensure that National Police Service Commission did not have the same powers as the Inspector General and his Deputies in commanding the force. Soon to follow was the National Assembly in its determination to divorce itself from the jurisdiction of the Sarah Serem Commission so that its remuneration issues would be handled by the Parliamentary Service Commission, since the latter had the constitutional responsibility over the “welfare” of MPs.
Soon thereafter the battle over the Division of Revenue Bill raised the question whether the Constitution was in conflict with itself seeing as it gave the power to determine the division of revenue to the National Assembly whilst requiring the Senate to participate in passing any Bill that affected the revenue of the counties, which would naturally include the Division of Revenue Bill. The stakes were raised by the Senate when it proposed to seek citizen support for an amendment to reduce the powers of the National Assembly on county related laws, arguing veto power given to National Assembly over all laws was a contradiction to Senate’s mandate to protect county interests.
These are serious matters especially when they relate to critical institutions like the security services where ambiguity in the exercise of power could lead to severe breakdown in law and order. What I find disconcerting is the assumption that the solution to these matters an amendment of a Constitution we passed barely two years ago. Several things are true. The Constitution has weaknesses and gaps. One would be surprised to find a Constitution made by man that did not reflect some of the society’s own contradictions, inconsistencies and ambiguities. Indeed knowing the convoluted process through which we birthed our Constitution, it is a miracle that it is not packed with greater blunders. Kudos must go to the Nzamba team for reducing some of the more amazing faults that were introduced during the Naivasha process as different political interests sought to outfox each other in ensuring particular content in the draft.
It is also true that all constitutions contain ambiguities that require correction and constant interpretation by the courts to align them with social and political realities. It is not surprising for instance that the meanings of some of the Articles in the American constitution are still being litigated in the Supreme Court 250 years after its enactment! We must therefore allow our courts to play their role in interpreting the Constitution and respect the courts’ decisions. In our own context however many so called “contradictions” arise out of pure unreasonableness on the part of the leadership in implementing agencies. Many fail to read the Constitution’s own guide on how it is to be interpreted. In Article 259 it says that the Constitution must inter alia be interpreted in a manner that promotes its values and principles and contributes to good governance. If we followed this edict, our disagreements on meaning would reduce significantly. The Constitution assumes, maybe wrongly, that its implementers are reasonable people, with fairly honest intentions, looking out for the best interests of the country. In the absence of good faith and reasonableness on the part of the leaders to whom the Constitution has granted responsibilities, no amount of amending the Constitution will cure its weaknesses. We need to remember that unjust human beings found a way to explain why “all men are created equal” excluded black men, even though without their strong backs the American economy would have collapsed.
Let us therefore not blame the Constitution for what is often times obstinacy, imprudence and bad faith.
