Amending the constitution is the unequivocal prerogative of citizens. Article 257 of the constitution guarantees it.
Given the rigorous and public involving process that went into drafting, reviewing, refining and realising the current constitution, one would have imagined that the “right to amend” is one that Kenyans would ultimately use sparingly after the constitution’s promulgation.
Indeed, there can be no doubt that the drafters of the constitution hoped as much and, accordingly, made it fairly arduous to change the constitution by popular initiative.
For changes to be effected, a sort of broad national consensus must be reached: 1 million registered voters must support the initial bid, at least 24 county governments must accept it and a majority in Parliament and the Senate must support it.
This kind of consensus is difficult to achieve and in any case constitutional change is exceptional even in the worlds self-professed bastions of democracy. In America, for instance, of the more than 11,000 bids to amend the constitution over the last 200 years of their independence, only 27 have been ratified; an average of about 1 amendment every 7 years.
- 1 DPP’s independence enhanced in proposals in the draft
- 2 Our Constitution is good but it lacks ‘Kenyanness’
- 3 Civil society is clearly on the wrong track
- 4 Elites have hijacked constitution making
While some people have been spurred to opposing the Okoa Kenya agenda based on fears regarding the fiscal challenges the movement might pose for the country, perhaps we should be equally wary of the tendency to default to constitutional amendment, to advance political and sectarian interests.
A nation’s defining documents are sacred, and there is a risk of subverting them through frivolous treatment, discussion and assessment of their contents.
The fact is that the Okoa movement began in 2014 following opposition leader's failed presidential bid. The same opposition leader was at the helm of rallying public support for the same constitution he now faults as being not comprehensive enough. Many of the issues the Okoa movement purports to fix, never once featured in the debates preceding the 2010 Constitution.
Of course, hindsight is 20-20, and perhaps the carrying out of constitutional provisions (e.g. devolution and the 2013 General Election), has brought to the fore what could not have been known at the time of the referendum; that a 15 percent minimum allocation to counties, was a low floor to set or that the IEBC needs to be comprised of commissioners affiliated with particular political parties.
Whatever the case, what could be known at the time of the referendum, is that newly introduced practices and prescriptions would need to be assessed over time.
Therefore, what could have been catered to — and arguably was — is the prospect of needing to facilitate changes without necessarily resorting rashly to the changing of the constitution.
Indeed, the argument has been made, and stands to reason which is why I reiterate it, that many of the issues the Okoa movement would like addressed do not have to be taken to a referendum. Many of them can be addressed through legislation.
Moreover, while some of the prescriptions of the Okoa bill are, I believe, untenable, other fundamental prescriptions are simply unnecessary.
Time would be better spent urging, as I commend the former Prime Minister for doing, the county governments to ward off corruption, embrace efficiency, cut recurrent expenditure and spend more on developing their countries.
But at the end of the day, one of the biggest problems with the Okoa movement lies not so much in their proposals, but in the fact that it is intensely political.
Unfortunately, that exists to the detriment of true democracy, and to the undermining rather than the upholding of our constitution.