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President Uhuru Kenyatta with Opposition leader Raila Odinga during the launch of the Building Bridges Initiative (BBI) report at the Bomas of Kenya in Nairobi last November. [File, Standard]
So far, as we know, inclusion has meant more jobs for political leaders – not inclusion for wananchi.

There were some worrying aspects of President Uhuru Kenyatta’s Madaraka Day speech.

One of them was the reference to the repeal of section 2A of the old Constitution – the section that had made Kenya formally a one party state. He said, “this section had outlived its historical purposes and it was morphing into a political cancer.” What were the historic purposes of the one party state – except the entrenchment of rule by a certain section of the community, and the quelling of dissent and democracy?

Then there was this: “I am already discerning a constitutional moment, …one that will bring an end to the senseless cycles of violence we have experienced in every election since 1992. ”

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Has the President been reading constitutional theory? Or has somebody been feeding him convenient slogans?

Legal procedures

A prominent American constitutional scholar, Bruce Ackerman, has a theory of “constitutional moments” to explain certain developments in US constitutional history when important constitutional change has taken place without the correct legal processes being followed – yet the change is accepted even by the courts.

The first of Ackerman’s moments was the very making of the American Constitution itself – which was not the outcome of the appropriate legal procedures.

Ackerman teases out a whole process followed in such cases. It has involved getting an issue onto the public agenda, the development of concrete proposals, manoeuvring between different elements of the government until the opposing governmental elements give in, elections in which the voters ratify the solution illegally arrived at, and endorsement by the Supreme Court.

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He describes this as a process of “higher lawmaking” – despite being technically not lawful, this process of acceptance makes it not lawless. He suggests there was always consciousness of the unlawfulness – it was not by oversight that technically correct legal processes were not observed.

Somehow, I doubt whether that is what Kenyatta had in mind. If it was, it is very worrying - that the President should set out to change the Constitution by appealing to a higher lawmaking process outside the Constitution that he swore to uphold.

More loosely the phrase “constitutional moment” is used when a certain impetus, especially at the level of the people, makes the chances of getting a constitutional change much greater.

Both notions of constitutional moment have the endorsement of the people as key aspects in their analysis.

We have to assume that the President was referring to the “Building Bridges Initiative” -- he goes on to speak of inclusion and the end to electoral violence.

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He did not, unlike his handshake mate, Raila Odinga, refer to a referendum, but he surely has in mind the same process.

At this point we do not know what revised proposal the BBI team will come up with after their further public consultations. So far, as we know, inclusion has meant more jobs for political leaders – not inclusion for wananchi.

After the peak of post-election violence in 2007/08 our troubles were analysed, particularly by two high powered commissions. One focussed on elections, and the other on the violence.

The two most prominent messages were: the inability to conduct elections that were credible to the people, and the impunity for violence. Little has changed.

Another factor was widely thought to be important at the time: changing our political system so that no longer was the presidency the only prize worth having.

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The drafts for a new constitution that already existed, and those developed after the 2007/08 crisis, were jettisoned by politicians in 2010, and a powerful president – if one in theory more constrained than in the past – retained. And the BBI would do little if anything to change that.

People have been commenting about the problem of the deputy president’s role  – how unclear it is and how much the holder of the position is at the mercy of the president.  The BBI would retain that role, and add another. That of prime minister.

Though that person would have to have the support of the majority in the National Assembly, we have seen recently how little the National Assembly values its role as a separate branch of government.

Five positions

The BBI seems to plan to add yet another role of sidekick to the president, in the form of the prime minister. Indeed three sidekicks if there are two deputy prime ministers, too. But the formal powers of the president would remain unchanged 

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Finally, the logic of this “inclusive” system would be that aspirants for these now five high positions (or one really high position and four subordinate) would band together and present themselves to the voters as a package.

This would come perilously close to a one party state. If it did not, it would not be really inclusive! Section 2A Mark II?

- The writer is director of Katiba Institute.

President Uhuru Kenyatta Constitution Raila Odinga BBI
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