Why we must tread carefully in bid to amend our Constitution

When the late President Mwai Kibaki displayed a copy of the New Constitution after the Promulgation ceremony at Uhuru Park, Nairobi on August 27, 2010. [File, Standard]

The constitutional amendment train seems to be gathering momentum, with the legalisation by Parliament of the Kalonzo-Ichungwa bipartisan talks.

So far, three issues seem to have achieved some political consensus: increasing number of counties, creating a powerful leader of the opposition and their deputy and constitutionalisation of various legislature-based development funds.

The first issue is fairly contentious but has been rumbling in the background since 2010. In the season that I served as a member of the Constitutional Implementation Commission, there were voluble complaints from some identified counties on marginalisation of certain groups in view of their minority status in the existing counties.

I remember spending two days in Migori's Kehancha in 2012 and listening to speaker after speaker complaining how the Kuria had been marginalised for decades and that devolution would now cement that marginalisation.

The complaints were not without some merit. The 47 counties created by the Constitution were based on the districts established by 1992 grounded on ethnic affiliation, and in many cases, cultural affinity.

It therefore appeared out of sync to leave permanent minorities in some counties, and it is no wonder the issue has gained traction.

Since increasing counties would require a referendum, one wonders whether it would gain sufficient support among the general population in view of the increased costs that setting up new counties would require.

There is also the challenge that there are rumblings of minorities in other parts of Kenya and if one opens that door, it is not clear who would be stopped from entering. Why for example would one deny a county for the Mbeere in Embu?

On the issue of leader of opposition, there is general political consensus that Kenya needs to build mechanisms that provide incentives for losing presidential candidates and their supporters to accept the election results.

It is possible that there will always be a losing candidate who politically controls a significant portion of the country. In a country where politics is everything, it is difficult to see such a leader fade into the sunset after losing.

The temptation to keep destabilising the country to get some political handshake is real. We also need to recognise that a government in office needs to be held to account by persons with substantial political clout, not the current arrangement where the leaders of minority, the dejure leaders of the opposition, are political minnows.

This issue was one of the popular BBI proposals and would find sufficient support if submitted to a vote. The final issue of constitutionalising the legislative funds is popular with legislators for this is where they maintain their link with the citizenry.

Without the CDF, ward based funds and other parliamentary funds, many legislators would have to go into their pocket to fund the numerous local projects which Kenyans now associate with their Mheshimiwa, including bursaries and blankets.

One would expect voter support for such an issue that sends more money to the village. It is however obvious that once the amendments trough is formally opened, these will not be the only issues on the table.

We could easily end up with numerous, sometimes conflicting proposals for change, similar to those that tainted the BBI. Inevitably, in between progressive and rational proposals will be introduced some claw back provisions.

There are many people in leadership who still believe the Constitution is too radical and requires subduing. For years, there have been murmurs in powerful places about the need to tame the Judiciary.

Doing away with the Senate or with constitutional commissions is a popular refrain in some circles. Therein explains my fear of any constitutional change.

Opening a chink for the necessary and progressive will allow the sneaking in of the retrogressive. It is probably wiser to work with the structures currently existing until they fully settle in the Kenyan psyche before tinkering with the Constitution.

If, however, changes must be introduced, it is prudent to keep them at a minimum. At this stage only recasting the Office of the Leader of the Opposition, and the, yet to be proposed, issue of constitutionalising more money for counties, makes constitutional and political sense.

The writer is an advocate of the High Court