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We're better off with the Constitution as it is than allow reform claw backs

By Kamotho Waiganjo | Jul 6th 2019 | 3 min read

Having served with the Commission responsible for overseeing initial implementation of the Constitution, I am alive to the inadequacies and deficiencies of our Constitution. I should therefore be on the forefront of supporting proposed changes to the document and applauding the initiative now commonly known as the BBI, whose primary objective appears to be working towards amendment of the Constitution. But I have lived in Kenya long enough to grow a healthy skepticism about “reforms” owned and driven by the Executive or Parliament.

I was there in 1990 when the KANU Review Committee headed by the late Prof George Saitoti went round the country collecting views on needed reforms. Its conclusion was that Kenya was not ready for comprehensive reforms. Despite Kenyans cry for change, the Executive wanted change it could manage. It took the unfortunate events of 2008 to change the narrative and give birth to the current Constitution.

As for Parliament, nothing speaks to its agenda than the two constitutional amendment Bills approved by the National Assembly this week. The focus of these bills is to change the structure of governance to make Parliament the pre-eminent organ of governance. These Bills are no different from most of the Constitutional Amendment Bills that Parliament has proposed in the last nine years. These Bills had one consistent characteristic; they sought further empowerment of Parliament.

The Bills included one that sought to remove MPs from being State Officers, cleverly woven, but clearly intended to protect parliamentarians from the “draconian” control of the SRC over their emoluments. Another Bill sought to bring billions comprised in the Equalisation Fund to a constituency, hence MP’s led process, while yet another sought to make it easier for MPs to miss parliamentary sittings without the consequences of loss of office required by the Constitution.

None of these Bills have sought to advance key interests of the people of Kenya or to continue the road of reform. Most have been retrogressive and meant to benefit members of the August House. Fortunately, at least on one occasion, the courts gave a veiled warning that they would strike down the amendment if it was ever passed by Parliament as the changes proposed were so fundamental as to require the adoption by the people through a referendum. To the Speakers credit, some nefarious proposals have not seen the light of day courtesy of his oversight over the process. But I have no doubt in my mind that given the right environment, the Executive and Parliament would push amendments that would be detrimental to the reform journey.

Hence my fear that the Executive driven BBI process, which would naturally require support of Parliament, would lead to trade-offs between the two institutions that would result in reform claw backs.

What then ought we to do in this Constitutional amendment process? If there must be amendments, any proposals for change must answer two basic questions. Who benefits from the proposed amendments? To the extent that the beneficiary of the proposed changes is a group of individuals, with the citizen’s benefit being merely incidental or totally missing, the proposals must be rejected.

Secondly, have the provisions sought to be amended been tried and tested sufficiently? Has it been established that they are not working or are irresolvable by other means, thereby necessitating amendments? I am amazed at how we are rushing to change systems that we have barely tried. For instance, some people believe that our problem is the Presidential system, or the structure of our devolution.

What they forget is that these systems have been tried for less than ten years and there has not been sufficient time to assess their suitability or to understand the changes we would need to improve or overhaul them. If these two questions cannot be answered in the affirmative, unless there can be a guarantee that we will not fill the document with regressive amendments, I believe we are better of working through the Constitution as it is, warts and all.

- The writer is an Advocate of the High Court of Kenya  

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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