It is clear from occasional pronouncements flowing across the political divide that we could be headed to a political consensus on constitutional amendments to resolve intractable issues wrought by aspects of the political architecture of the 2010 Constitution. This is not surprising.
In Kenya’s history, constitutional change has always been primarily aimed at achieving political objectives as opposed to resolving the social and economic issues that plague the country, an issue comprehensively tackled by Professor Githu Muigai in his must-read book “Power Politics and the Law.”
The 2010 constitution was no different. The momentum for its development was created by the politically instigated clashes of 2008. What was different in the process was that its primary drivers were not the political actors but a coalition of non-state actors including the church, civil society, and professional organizations. The politicians did contribute immensely to the design of the political chapters, but the Constitution’s progressively pro-people provisions were birthed outside of politics.
Three elections after its promulgation political actors want back on the driving seat, to align the political design provisions with political realities. I would caution the many “Friends of the Constitution” to beware a politically owned and driven process. Like the proverbial camel, once the political establishment enters its head, to supposedly only adjust some provisions to deal with political challenges, it could easily enter the whole body and undo many of the pro-people protections in the law. That said, I am conscious of the dynamics of politics the reality that once politicians reach consensus, the process of adjusting some provisions will be unstoppable. As politicians stumble through the process of obtaining that consensus, Kenya’s Friends of the Constitution must regroup and determine the role they want to play in the process. More importantly, they must define the minimal changes that they would support if the process proceeded.
In my view, only one political change is necessary: the inclusion of the presidential runners up as Leader and Deputy Leader of the official opposition. This is necessary for managing our post-election politics and avoiding the instability that is inevitable especially where the results are close. Part of the challenge that Azimio poses today is that almost half the country voted for its presidential candidate, but our political architecture keeps him, and his team totally isolated from formal public affairs. Such a change will also strengthen the oversight role of Parliament because of the increased gravitas of the opposition leader particularly as the presidency becomes increasingly powerful unlike what had been intended by the Constitution. I recognize that this leaves out gender equalization, constituency boundary equitization and other issues that remain outstanding. I however believe that there are sufficient political and statutory means of resolving these issues if the political goodwill is available.
Just recently, we created a defacto Prime Minister’s office politically without a single amendment so clearly, if the political will is there, a way exists. If the Friends of the Constitution are to support political design change, they also must negotiate corresponding pro-people provisions to be included. The most critical is increasing county allocations and the establishment of a constitutional mechanism that ensures exchequer releases to counties without debilitating delays. To my mind, increase of county allocations has a dual role.
Firstly, it brings about expansive economic development irrespective of regional politics and therefore resolves marginalisation and development challenges. Granted, there are legitimate concerns that increased allocations will increase local corruption but the answer to that is not to reduce allocations but establish more robust oversight mechanisms concurrently with increased allocations.
Secondly more monies in the regions refocuses our attention from the presidency to the counties as the sources of public resources. This inevitably stabilizes the country politically especially after the polls. From where I sit these should be the only changes that we should contemplate if a fresh round of amendments is to be implemented. If we are unable to agree on these as the only minimalist changes acceptable, let us maintain the status quo rather than take the risk of reopening the Constitution, knowing the many enemies it possesses.
- The writer is an advocate of the High Court of Kenya