Kenya’s political class can relate with the famous aphorism “What goes around comes around” in terms constitution-making – right from the independence to the 2010 Constitution that proponents of the Building Bridges Initiative (BBI) are now seeking to amend.
Constitution-making in Kenya has, over the decades, turned heroes into villains and vice-versa, as politicians push through their bargains and shift positions according to their interests. And curiously, not everyone gets what they bargain for.
Deputy President William Ruto, for instance, is a political beneficiary of the 2010 Constitution, whose implementation he spiritedly opposed. Today he enjoys security of tenure and is so far the most secure holder of the second-highest constitutional office in the land. But if he also succeeds to block implementation of the BBI but fails to win the presidency in August, he will be the one on the receiving end this time around. He will miss out on the several perks and allowances for the office of Leader of Official Opposition proposed in the BBI document. Previous losers in the presidential race, including Raila Odinga, Kalonzo Musyoka and Musalia Mudavadi have been condemned to life out of Parliament and government.
Constitutional lawyer Paul Mwangi considers the case before the Supreme Court a blessing in disguise, because it gives Kenyans a good and early opportunity to address the dicey question of constitutional amendment: “The case at hand is not solely about BBI, but rather an argument critical about our future and the delicate undertaking of constitution-making. The decision that the Supreme Court will arrive at, will therefore not be viewed through the narrow lenses of who is the winner or loser of the BBI drive but rather it will serve as a future guide on constitution-making and amendment.”
The ongoing big debate among the legal fraternity, says Mwangi, revolves around the pros and cons of amendability and unamendability of the Constitution. While some say unamendability is the best way to go in protecting the Constitution from interference by the political class, Mwangi argues that a rigid document which is difficult to amend is even more dangerous.
“And there are many examples in our history, including in 2007 when we had to inject the National Accord Act into our Constitution creating a Grand Coalition Government. Against the backdrop of a bleeding country following post election violence, you can imagine what would have come of Kenya if our Constitution was unamendable at the time,” poses Mwangi, who also serves as Raila’s legal advisor.
Going by the current legal and legislative hurdles of the BBI, there is no denying the document poses great challenges to the constitution-making process. Senate Leader of Minority James Orengo, who has twice failed to convince the courts on the legal standing of BBI in amending the Constitution, has maintained that the 2010 Constitution was a product of a political settlement, meaning it was a stop gap measure aimed at momentarily reconciling existing conflicting political interests.
Constitutional lawyer Kamotho Waiganjo, for instance, credits Raila and his ODM brigade for the concession they made in 2012 by switching position to “pure presidential system”. While the move, during stakeholders talk in Naivasha, shocked many, Waiganjo says it made it possible “for us to have a constitution, so Kenya owes a debt of gratitude to those, including Raila, who advised the change.”
Nonetheless Waiganjo, who served as member of the Committee of Experts (CoE) – the technical body that pieced together the 2010 Constitution, believes that Raila regrets his team’s concession of a presidential system at the Naivasha talks to this day. Raila had all advocated for a parliamentary system of government.
As the country’s Prime Minister, Raila was the frontrunner to succeed Kibaki at the time and pundits have speculated that the ODM leader switched his stand in the hope of enjoying execution of executive power, enshrined in the presidential system.
But alas, The National Alliance’s (TNA) Uhuru Kenyatta was elected president, thereby condemning Raila and Kalonzo to political cold. In a newspaper article, Waiganjo separately points out that the move has returned to haunt Raila by complicating his alliance-building arrangements in the 2013 and 2017 polls. This is because unlike his preferred parliamentary system of government that offers room for positions of Prime Minister and two deputies, the current arrangement only offers two shareable slots of President and Deputy President of the Executive.
Since independence, constitutional-making has been marked by a host of twists and turns. The Independence Constitution which was implemented in April 1961, for instance, was majorly frustrated by political competing interests of two major parties, Kanu and Kadu. At the time, narrates historian Macharia Munene, Kanu was focused on the transfer of power from the British colonial rule, while Kadu was more interested in limitation of power in the interests of smaller ethnic groups. Kanu, explains Munene, was particularly unhappy with the entrenchment of regionalism, or “majimbo”, in the Constitution.
Jaramogi notes in his notable autobiography, Not Yet Uhuru, that Kanu accepted the document “for the purposes of accelerating internal self government and independence with a stated intention of carrying out amendments on the Constitution”.
Upon independence in 1963, however, President Kenyatta was reluctant to execute the “foreign Constitution” handed to Kenyans by the colonial government, and he found an appropriate fixer to this headache in the person of his vice president. Jaramogi was personally convinced a regional system was the worst.
“It inevitably produced duplication of functions, erratic and uncoordinated planning. There was an additional danger that money would be spent not on essential administration and services, but on politics,” he writes in Not Yet Uhuru.
But three years later, Jaramogi would become victim of his own scheme when Kanu, through the infamous Limuru Conference, crafted a political leadership structure introducing five positions of regional vice presidents, thereby whittling down his powers and further balkanising the country. Frustrated, he resigned from government and formed the Kenya People’s Union (KPU) opposition party.
Twenty six years later, President Moi’s repeal of section 2A, leading to re-introduction of multi-party politics, nearly dimmed his political career in 1992, and only survived because of disunited opposition that split its votes at the ballot. Then Kanu’s Moi garnered 1,962,866 votes, representing 36 percent of the votes cast, as compared to Kenneth Matiba’s (Ford-Asili) 1,404,266, Mwai Kibaki’s (Democratic Party) 1,050,617 (19%), and Jaramogi’s (Ford-Kenya) 944,197.
Although Moi still scrapped through to power in 1997 with minority votes, he paid the ultimate price of his 1992 pronouncement amending the old Constitution when in 2002 a united opposition under the umbrella of National Rainbow Coalition (Narc) swept the boards thereby ending the ruling party’s 40-year hold on the country’s leadership.
Kibaki similarly ended up with an egg on the face three years later, after promising to undertake a Constitution review within 100 days of his rule. Instead the so-called Bomas Draft watered down the position of Prime Minister and gave the Office of President more teeth contrary to proposals arrived at through public participation countrywide. The government lost in the subsequent 2005 referendum, leading up to an ill-tempered and bloody General Election two years later.
During last week’s three-day hearings, senior counsel John Khaminwa said there was very little to admire from the current crop of politicians because “they are mere job seekers who come up with things like amendments to the Constitution in order to stay in power” – an observation that Prof Munene, a lecturer, concurs with.
Prof Munene maintains that since independence all constitutional amends have been motivated by political interests.
He points out that the 1964 Republican Constitution, for instance, was amended at the behest of Kenyatta’s close allies, to stop Jaramogi from automatically assuming office as President in the event of Kenyatta’s demise or incapacitation.
The historian narrates that the move was spearheaded by the then Justice and Constitutional Affairs minister Tom Mboya, who was equally ambitious to replace Kenyatta. But Mboya, recounts Prof Munene, would become victim in 1968 following a new amendment to the effect that a sitting vice president would assume office as President in acting capacity for 60 days, in the event of a vacancy in position of President.
“Mboya, who had initiated the earlier changes in the hope of upstaging Jaramogi in the quest for presidency, was the target this time around. The changes, engineered by Attorney General Charles Njonjo, were geared at giving the then VP, Daniel Moi, safe passage to the top seat,” explains Prof Munene.
Ideally if Orengo’s wise counsel is anything to go by, then it is prudent to approach the constitution-making process soberly as if “you are designing it for your worst enemy, because situations and interests change and you never know when the shoe is on the other foot”.
Mwangi adds that a good Constitution is one that can be amended or adjusted where necessary or to suit critical situations that have to be fixed for the greater public good. The lawyer opines that the ideal Constitution “must not give in too much to the extent of caving in to temporary whims of powerful individuals”. There has to be a good balance between the two.