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It is premature to amend Supreme Law at this time

By Kamotho Waiganjo | March 27th 2016 at 12:00:00 GMT +0300

In a country where everything is assessed on the basis of its political impact, the glee by Jubilee after the IEBC sounded the death knell on the Okoa Kenya referendum was predictably palpable while the reaction by CORD, accusing IEBC of being a department of Jubilee was entirely foreseeable.

I must, however, confess that I am one of those who were glad that the proposed referendum did not advance. I am also praying that the remaining initiatives, including Punguza mzigo, Boresha and Mashinani die a similar death.

Having been in the business of constitutional implementation for a while, I am convinced that while like all documents made by man our Constitution has some defects, our priority as a nation is not its alteration five years after we passed it.

Four reasons give me pause on this “change the constitution” movement.

Firstly, we have barely implemented the bulk of the Constitution, including some of its tremendous gains; many of which would resolve its oft-quoted inadequacies. There can be no better illustration of this reality than the debate this week on the Division of Revenue Bill in the National Assembly. During the bulk of the debate I counted not more that 10 MPs in that House of 349 members.

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While I laud those who were at least in attendance, sadly, the majority who spoke lacked focus on the grave matters raised by the Bill concentrating more on lauding CDF and lambasting Governors.

There was a total lack of appreciation of the critical role that the Constitution had taken from the Executive on financial matters and given to Parliament.

The centrality of this Bill escaped most members. This is most disconcerting when one considers that the primary focus of both Okoa and Mashinani initiatives are on increasing the revenue share for counties, which is determined by Parliament through this very Bill!

Is this not a tragedy that MPs are busy asking to amend the Constitution to increase revenue for counties while missing in action when revenue division is being determined by the House!

Secondly, I hesitate in supporting the amendment movement because while we may have realised the challenges posed by some aspects of the Constitution, we have not experienced it enough or had enough sober non-politicised discussions on options available for amendment.

We may know for example that the current method of appointing IEBC commissioners may not deliver the most acceptable and credible commission but have we considered what the improved version would be? Would Okoa’s proposal to have political parties nominate members improve or worsen the situation?

One of the beauties of the current Constitution is that its content arose from a bi-partisan process rather than any political wing trying to get the best advantageous provisions.

The sort of challenges posed by the Constitution now are best discussed in a bi-partisan environment to ensure that the Constitution remains an instrument of unity as opposed to the best evidence of our differences.

Thirdly I am concerned about amending the Constitution in a partisan environment. In the political heat that it generates progressive ideas can be killed and regressive ones passed.

I have for instance heard a lot said about the need to do away with the affirmative action gender provisions in the Constitution. Because the motion to claw back is presented in populist language in partisan political environments, citizen’s capacity to engage and reject retrogressive ideas is compromised by the need to ensure a political win in a contested political environment.

Finally I also have a problem with amendments of the Constitution at this point in our political calendar. We have barely a year before we go into elections.

Already the election drumbeats are on and the country is about to get hopelessly and God forbid violently divided on any issue. Can we afford another divisive process between now and the elections?

Are the issues at stake so severe that they cannot wait for resolution at the elections? Indeed it may help define the elections as issue based so that one will vote a package, a political leadership and their preferred constitutional change.

Obviously, with an electorate confused enough by six elections in one day, this may not be ideal, but it sure beats undertaking referenda in this season.

supreme court Okoa Kenya CORD
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