The 2010 Constitution provides for two routes for its amendment – parliamentary and popular initiative. Any proposals to amend the Constitution emanating from any of the three arms of government must go through the parliamentary route while a people's initiative, as the name denotes, must originate from the people and be driven by the people.
The BBI Constitutional proposals originate from and are driven by the Executive, using State machinery and public resources. This is illegal and unconstitutional. We the people must rise and reject this blatant attempt by the State to subvert the Constitution by usurping the people’s window for amending it and worse still, by silencing the people's voices in these ill-conceived amendments.
The amendments are ill-timed given the challenges facing the country. Article 43 obligates the government to provide basic needs to the vulnerable, namely, access to quality health services, water and sanitation, education, adequate housing and food, among others. It is therefore the government's duty to obey the dictates of the Constitution and give the people access to health during the pandemic and beyond, and to shoulder the cost of testing and treatment.
Unfortunately, this has not been evident in the fight against the Covid-19 pandemic. Instead, the government is behaving in an extremely insensitive manner, abandoning citizens by claiming it has no money to meet the Covid-19 testing and treatment demands and at the same time proposing to use the scarce resources for a referendum whose main purpose is to subvert the basic structure and increase seats for the leaders.
It is equally the government's duty to cushion the unemployed and other vulnerable citizens by giving support to enable them meet their basic needs such as food and shelter. The cash transfers to the elderly are inadequate in that they do not cover all the elderly, and do not cover the unemployed. Available funds should be utilised to expand the social support to all vulnerable groups in accordance with Article 43.
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The referendum drive is thus being prioritised while the government neglects matters of life, death and livelihoods. The government is employed by the people to attend to their needs. We the people must, as commanded by article three of our Constitution, rise and reject this abuse of power by the Uhuru administration by standing up to defend the Constitution.
The 2010 Constitution gives power to the people. It is We the People who donate power to the Executive, Parliament, and the Judiciary. The proposed BBI constitutional amendments seek to flip this by introducing an imperial president who is not accountable to the people; a president who appoints and fires ministers and their assistant as well as principal secretaries; a president who can overrule Parliament and hire a prime minister of his choice; a president whose hand is not only in Parliament through the ministers and assistant ministers, but also in the Judiciary through the Judiciary ombudsman who will be his appointee, and who sits in the JSC.
With powers to single-handedly initiate disciplinary or removal proceedings of judicial officers, who comprise the majority of members of the JSC, the Judiciary ombudsman will literally be a powerful government inspector menacingly towering over the JSC and the Judiciary as a whole.
While a Youth Council and a Constitutional Health Commission are good proposals, having them without commitment by government to fully implement the Constitution to address access to quality health services by all, welfare issues of health workers, and the shrinking job market for our youth, these proposed institutions will not cure the ills bedeviling these two sectors.
Without political will to take on corruption head on, the scarce resources needed to implement the Constitution and make our aspirations for quality health services a reality will come to naught. Equally, without addressing corruption, our economy will not create the jobs our youth so desperately need. The BBI proposals are but baits to deceive the masses to support it. In a nutshell, nothing in the BBI proposals is superior to what the Constitution already offers.
Article 27 proclaims equality of women, men, and indeed, of all persons. While the proposal to have equal numbers of women and men in the Senate, and to fulfill the gender rule in the National Assembly is in line with our aspirations in the 2010 Constitution, it should not blind us to the unconstitutional glass ceiling set by these proposals.
No mechanism is put in place for gender inclusivity in the five top positions namely president, deputy president, prime minister and two deputies, or the positions of county governors and their deputies. Further, there are other ways of meeting the gender rule without having a bloated Parliament of 600-plus, as proposed by BBI. Why would women believe that a government that has for over eight years refused to implement the gender rule will now implement the gender provisions even if passed?
After repeated announcements that no amendments or new proposals would be entertained, a unilateral decision to incorporate a smattering of views publicly expressed by critics was made. This begs the question as to the stakes in the proposals and only adds to the perceptions of a back-door term extension or the return of the all-powerful strong man.
The Executive’s rabid desire to amend, nay overthrow the 2010 Constitution in the middle of a pandemic which has ravaged Kenya and the world for most of the year, is inappropriate, ill-timed and illegitimate. It also speaks to the impunity with which this administration has treated the rule of law and constitutionalism, given its disregard of due process of which the proposed pathway for amendment as proposed in the BBI is a case in point.
In the context of these illegalities and misgivings, I urge all Kenyans of goodwill to read between the lines and reject the BBI machinations of using an illegal and unconstitutional route to unwittingly return us to the dark days. If we accept these ill-conceived, ill-timed, and unconstitutional BBI amendments, we will have facilitated a major claw back on the gains in the 2010 Constitution and emboldened the Executive to continue violating it. We shall have opened the doors to the Magufulification of our country to the detriment of future generations. The solution lies in protecting and implementing the current Constitution in full. This is our civic duty. Tulinde Katiba.
-Karua is party leader Narc Kenya and former Minister of Justice