Kibwana: We can only help ourselves by renegotiating the 2010 constitution

It took a protracted peoples’ struggle from 1989 to 2010 to retire Kenya’s 1963 independence Constitution which by 1981 had been converted into a one-party Constitution. The 2010 social contract has been hailed as progressive; it has no doubt expanded Kenya’s democratic space. However, its operationalization has revealed gaps which have undermined the country’s potential for political and socio-economic

After two seasons of electoral contest in 2013 and 2017, the new Constitution has been cited as a major contributor to electoral injustice. Customarily, new constitutions are usually reviewed after a reasonable lifespan. Kenya’s seven-year-old Constitution is therefore ripe for renegotiation.

The 2010 Constitution was itself a negotiated settlement. The largely people - driven Bomas Draft was further subjected to significant alterations by the feuding political class. Some of the compromises reached are now returning to haunt Kenya. Why are Kenyans then focusing on constitutional review today?

'Elections without choice'

Part of the country’s population feels excluded from political leadership and thus the attendant economic benefit derived there from. Many believe our political experiment has failed and should be reworked. Critically, our brand of democracy does not allow for easy change in political office; it is a fiercely exclusivist winner-take-it-all model.

If the country does not address the perennial problem of failed elections, then we should be prepared for a five-year cycle of electorally-induced economic lull, ethnic tension and skirmishes and even blood bath. Therefore constitutional, legal and other changes will help us to transit from "elections without choice" to genuine elections. Paul Collier, a professor of economics and public policy at Oxford University warns that "on their own, unless they are held in the context of a functioning democracy, elections can retard rather than advance a country’s progress." He further observes: "As with elections and reform, democracy is a force for good as long as it is more than a façade".

The controversy surrounding the 2017 General Election may also have a silver lining; it has given the country a constitutional moment. Possibly it may be easier to revisit the Constitution for review because both Uhuru Kenyatta and Raila Odinga are likely not to vie in 2022. Any retiring leader needs a fair Constitution which cannot be deployed against them or their supporters subsequently. Further, resolving the electoral quandary is likely to translate into an enduring legacy for the prime movers of the review initiative. Future contestants of Executive office and their constituencies - indeed the entire country - could benefit from an expanded Executive.

To midwife the desired constitutional reform, national dialogue is essential. In my view then, it will be crucial for the country to consider dialogue on the following ten points, among others:

What needs to be done

First, electoral justice must be realised in all its manifestations. Each vote must count in the future. Just like happened in 1997, the political parties that contest in an election should have a hand in establishing the electoral body. To strengthen the electronic voting and tallying system, a law could stipulate the electronic record of the electoral outcome (“the server”) will be opened prior to declaration of results. Gender representation must be conceded in both the National Assembly and Senate.

Second, the governance system requires restructuring. For example we should consider reverting to the parliamentary system envisaged in the Bomas Draft as well as in the experience of the 2007-2013 Grand Coalition Government. There was merit in adopting that system at independence. Proportional representation should supplement the first-past-the-post electoral system.

Third, the independence of constitutional commissions and other similar offices, national security offices and the Judiciary must be buttressed. The 2010 Constitution endeavoured to curb over-concentration of executive power.

Fourth, strengthening party coalition-building mechanisms through political party reforms is critical. This will guarantee detribalisation of political parties and politics; Democratic Party elections and nominations; and penalising breach of the coalition agreement. Fifth, a dialogue that addresses the scourge of negative ethnicity to pave way for the flourishing of the Kenyan nation, is key.

Sixth, we must decisively deal with corrosive corruption. To slay this dragon which sucks Kenya’s economic blood, lifestyle audits and publication of annual wealth declaration forms should be made mandatory. A special prosecution system for corruption cases should be devised.

Seventh, national debt must be regulated by the Executive and the Legislature as well as County Assemblies.

Eighth, national discourse on how to create robust policy, law and institutions that seriously promote youth empowerment will secure our common future.

Ninth, strengthen devolution by ensuring that the Executive cannot usurp county functions, and at least 15 per cent of the country’s budget gets reserved for the counties as the structure of devolution is revised to mirror that in the Bomas Accord.

Tenth, we must palaver about how to arrive at true economic justice for all. It will be critical to establish a formula for equitable sharing of the national government component of budget.

Some of the above constitutional changes will entail a referendum.The stalled Okoa Kenya Movement sought and even today’s NASA's Peoples’ Assemblies seeks to mobilise the country for a constitutional referendum. National consensus for both constitutional change and referendum must be developed.

Constitutional review should not be a protracted process as happened in the past. Long-drawn-out constitutional audit risks sabotage. Kenya was poised to transition into democracy and middle economy status after the 2010 constitutional milestone. It is sad, it didn't.