Why quest for referendum is suspect

By DANN MWANGI

Chapter 16 of the Kenyan Constitution 2010 elaborates how the document can be amended. This chapter must have been put in place by the drafters of the Constitution upon realisation that the supreme law is not cast in stone. That the clamour to change sections of the law would arise in future.

Nearly three years since the Constitution was promulgated, two groups, one led by the former Prime Minister Raila Odinga and the other by Bomet Governor Isaac Ruto, have begun the drive to change the Constitution.

Raila Odinga and his CORD brigade want a change from the current presidential system to a parliamentary system of governance whereas Isaac Rutto and his allies want a referendum on the yardstick of sharing county resources. This is despite the fact the issues they are raising have not been tested before under the new constitutional order. 

With this in mind, it’s important that we interrogate these as they will largely shape the national psyche, and either deeply divide or unite this country.

On CORD’s demands for a parliamentary system, key questions arise. Has the presidential system failed such that parliamentary system is the best governance model? Does the parliamentary system address CORD’s fear of “tyranny of numbers” and ensure “safety of numbers”? Could CORD have formed government if Kenya was a parliamentary system? Is the clamour for a parliamentary system by CORD actuated by the fact that they lost in the General Election?

In my view, these questions are pertinent and will help us understand whether CORD is pursuing a genuine constitutional amendment or they are just playing politics and setting the stage for 2017.

Autonomous

To answer these questions, it is fundamentally wrong for CORD to argue that the presidential system under the 2010 Constitution has failed, yet it has not been tested. In fact, it’s unlike the previous Constitution where the presidency had autonomous powers but lacked adequate checks and balances.

Additionally, the Judiciary in this presidential system is not at the beck and call of the president unlike before. And with independent constitutional commissions, the powers of the president have been drastically reduced.  Above all, the creation of county governments has occasioned transfer of power from national level to county levels and therefore it’s not a strong presidential system of government.

On the question whether parliamentary system prohibits the “tyranny of numbers”, this remains a misconception by CORD in assuming that if Kenya had this system, President Uhuru Kenyatta would not have have easily defeated Raila Odinga for the premiership position as his coalition has the majority of Members of Parliament.

On the question of whether the demand for constitutional change is informed by the fact that CORD lost in the last elections, there is every reason to believe that it is tagged on both March 4 and the 2017 elections. This is because when this demand began, some CORD senators like James Orengo and Johnstone Muthama were quick to demand that amid the impending ICC trials facing Uhuru Kenyatta and William Ruto, they would ensure that Raila Odinga becomes the president at all costs. This means that the referendum talks are just a platform for them to play politics in readiness for 2017 elections.

Imaginary fight

Back to Ruto and his allies, it is easy to outrightly dismiss their quest as lacking both legal and philosophical thinking. It appears as a desire to create an imaginary fight with the national government for purposes only best known to them. The national government has already budgeted 32 per cent of the moneys for the counties, which is by far more than the minimum constitutional threshold of 15 per cent. Moreover, some governors have pleaded with the national government to continue paying salaries of some of their staff until they have the capacity to do so. Therefore, it is incorrect for them to state that the national government is frustrating them.

Nevertheless, this debate about the two referendums will definitely continue but it must not be allowed to divide the country like the 2005 referendum and also hinder national growth.    

The writer is a lawyer.