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People’s mandate: Why I don’t trust politicians to amend the law

By Yash Ghai | January 27th 2018 at 00:00:00 GMT +0300

Yash Pa Ghai

Until recently a favourite occupation of politicians (in the wake of disputed elections) was to agitate amending the 2010 Constitution. Even before the polls NASA leader Raila Odinga took this matter so seriously that his team prepared a set of amendments and secured (or thought they had) a million signatures of voters in support. Article 257 provides for the amendment of the Constitution by “popular initiative.” The process is complicated, involving signatures by a million voters (confirmed by the IEBC), support of a majority of county assemblies, and majority of the members of both Houses (failing the last, the support of the people in a referendum). At that time other parties were critical of this initiative, as I was, perhaps for a different reason — I thought it was too soon after the promulgation of the Constitution. Nothing happened as the IEBC ruled there were insufficient signatures.

Now there seems to be some consensus among political parties for replacement of the executive presidential system by a parliamentary system. During the constitution making process nearly 18 years ago Raila and DP William Ruto supported the Westminster parliamentary system. Former President Kibaki also, initially, supported the parliamentary system: in his submission to the CKRC, he vigorously attacked what he termed the “imperial presidency.” But his position changed 180 degrees once he tasted the flavour of executive presidency following the 2002 elections.

The issue of the executive system arose again when the Committee of Experts (CoE), under the agreement between Kenyan politicians and Kofi Annan’s team following the atrocities after the 2007 election, reviewed the Bomas and Kibaki drafts. The CoE’s preferred the parliamentary system, but felt it had to concede to political parties’ unanimous support for the presidential. Now, blaming the Constitution, politicians want a parliamentary system, but have given no indication of other changes.

Kibwana’s 10 points

Because it is clear that few politicians have read the Constitution (but all are ready to blame it), I was pleased to see Makueni Governor Kivutha Kibwana’s (a distinguished academic) article: Why in spite of new laws (meaning Constitution), we’re aggrieved. I thought he would blame politicians for our predicament—but not so. (I missed at first, the subtitle in small print over the heading above: The 2010 Constitution has not cured all of the ills, let’s renegotiate it). I thought he would say the fault is not in the Constitution but in politicians. But no. It was the Constitution — which he tries to demonstrate by 10 points/deficiencies some of which I discuss now.

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(1)“Electoral justice must be realised in all its manifestations.” Absolutely, but whose fault is it? Certainly not the Constitution which sets out the electoral process in detail to remove all malpractices that accompany our elections, including bribes, tribalism, intimidation and violence. Parties must have broad, country wide support to transcend ethnicity. These provisions are violated by parties and the IEBC has done nothing to stop them.


Prof Kibwana advocates reviving an old model of an electoral management body: members nominated by political parties (no serious attempt at independence). Various countries have such a model; it did not work for us during the 2002 election. We do not have sufficiently stable “sides” in Kenyan politics and there is no guarantee such a body would not be like the IEBC,  divided on party lines. Kibwana also advocates proportional voting system, to ensure elected bodies more accurately reflect the way the people have voted. This was removed from the then draft Constitution at Bomas.

(2) “The governance system requires restructuring”—referring principally to replacement of the parliamentary system which the politicians threw out, with the executive president by political parties.

(3) “Independence of the independent commissions must be buttressed…. to curb the over-concentration of executive power.” The constitutional provisions are perfectly adequate in their functions, independence and resources, but the politicians, particularly the government, will not let them operate according to their mandate, as he well knows and acknowledges. 

(4) “Strengthening party coalition –building mechanisms through political party reforms is critical.” No law can tell parties to form a coalition—this is a matter of politics, as it should be. Nor does he list the values of coalition—they often work against a vibrant democracy.

Political party reforms are needed—the Constitution already calls for many, but parties have disregarded them.

(5) “A dialogue that addresses the scourge of negative ethnicity to pave way for the flourishing of the Kenya nation is key.” This does not seem to be addressed to constitutional change, but the behaviour, primarily, of politicians. The Constitution makes heroic efforts—in numerous provisions - to make of us a united nation while at the same time promoting the diversity of cultures and religions. Kenyans, on the whole, do not find it problematic working with people of other tribes. But politicians stir up ethnic hatred—as a device to win elections. All major parties have violated numerous provisions of the constitution as regards ethnic harmony—and the independent commission to promote ethnic harmony has ignored these violations—for political reasons.

(6)  “We must decisively deal with corrosive corruption.” Again, it is hard to imagine another Constitution which places such emphasis on integrity of all state officers and a strong mechanism for investigation and prosecution of corruption.  Politicians and public servants, in cohorts with business community, are the principle source of corruption—would Kibwana like to give them greater powers?

And so

It is of interest to note that all discussions among politicians on constitutional amendments focus on power sharing between politicians, belonging to key political parties, and how they can increase the grease to themselves. Kibwana does mention as one goal is to attain “true economic justice for all” but conceives of it in terms of “equitable sharing of the national government component of budget.” Nothing about the broader issues of social policies necessary to ensure minimum well being of all Kenyans—not something that interests politicians.

Tribally oriented


Every “change” that he advocates is clearly and extensively provided in the Constitution. It is time he acknowledges that the “constitutional” problems he and other politicians are listing is really a device to hide the abominable conduct of politicians who regularly transgress and violate the Constitution and other laws—and to confer even greater authority upon politicians.

In an article in the DN (by John Ngirachu), Kibwana comes out as a tribalist when he reminds the Luo that in 2022 it is the turn of Kamba, in fact Kalonzo, to assume the presidency. Luhya feel the same about Mudavadi. On the Jubilee side the top Kalenjin are reminding the Kikuyu that 2022 is their turn, and already have a candidate, as the Kikuyu work out their strategy to keep the crown at home.

This attitude of tribally oriented politicians towards a united Kenya is hardly a qualification to amend the Constitution. In fact their dominance of the process is little short of disaster. The Bethwell Kiplagat Commission set up by Kibaki to review the previous constitution making processes found deep distrust of politicians by the people, especially in constitution making. The CoE faced similar narrow perspective among politicians—much was lost in the process. On the other hand the civil society driven processes were more broadly oriented, fighting for democracy, social justice and human rights. The best process was Bomas with interest groups represented, and discussions and decisions were made in public.

I do not believe the Constitution is perfect—far from it. I consider that time has come for a review of it working, but I would not trust politicians to undertake this task, as their own interests are deeply involved. Leave it to the people, who after all are the sovereign.  

-The writer is former Chairman of the defunct CKRC

amendments constitutional requirements kenyan constitution
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