Kenya does not need Constitutional review, say experts

Prof. Yash Pal Ghai during a past interview with former KTN News host Tony Gachoka at Serena Hotel on March 15, 2019. [File, Standard]

Legal experts have warned that politicians cannot be trusted to steer constitutional reforms and that the Building Bridges Initiative (BBI) is canvassing for the interests of the elite.

They now want a people-driven process if at all constitutional reform is needed. 

Narc-Kenya leader Martha Karua, Thirdway Alliance’s Ekuru Aukot, Prof Yash Pal Ghai and Dr Mshai Mwangola yesterday agreed that this was not a constitutional moment, and even if it was, the current crop of leaders was not fit to drive the reforms process.

The four panellists were speaking during a virtual meeting dubbed “Another constitutional moment? The BBI or Punguza Mizigo as hegemonic tools, instruments of transitional politics or drivers of Wanjiku’s aspirations?”

The event was moderated by journalist James Smart.

The panellists said although political leaders have rights and should take part in the reforms process, just like fellow citizens, they are not to be trusted because they do not front the ideas, aspirations, interests, and dreams of the mwananchi.

“The political elite can be part of the process but not be driving the process because they only front their interest and ideas. The BBI is simply pushing the elites’ agenda,” said Mwangola.

Her statement was echoed by Karua, who said only a few people in government cared about the Constitution.

The former Justice minister said constitutional changes were made for convenience, that is, to clinch elective posts and for transitional politics. She accused members of the arms of government of only choosing legality when it suits them.

“The Executive obeys the Constitution only when it favours them, so does the Legislature and even the Judiciary to some extent. Case in point is when the courts directed the reinstating of a judge, yet the Judiciary hasn’t done that to date.”

It also emerged that Kenyans fear going back to the dark, old days of single-party rule and limited rights and freedoms, with the panellists noting that citizens were waking up to the reality of Article 1 of the Constitution and taking advantage of it to the dismay of politicians.

Article 1 states: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

“It was unthinkable previously to remove any government official in power. Today we see the impeachment of governors and soon we may see even elected Members of Parliament being recalled,” said Mwangola.

She added: “The BBI is a mystery to most Kenyans. They don’t even know what it means. Kenyans must agree to debate the process. It must not be just about the people, but also people-centred. The process must start with the people.”

Karua has previously urged Kenyans to snub the BBI “because it does not welcome dissenting views”.

The panellists said the Constitution had a few issues, not entire clauses and segments, that needed to be reviewed. The shortcomings, they added, mainly touch on leadership and the review process must not be viewed like waving magic wands to solve the country’s problems.

“We treat Kenyan discussions like academic ventures. As Kenyans, we have come together for long enough. We now need actions and practical steps,” said Aukot.

The Thirdway Alliance leader said if he were to amend the Constitution, he would end impunity, propose life sentences for corrupt leaders, bar them from being appointed to any government office, and institute electoral justice.

He, however, opined that it was not yet time to change the Constitution because there were more pressing matters that needed to be addressed. The proposed reforms, he added, are not legal.

Karua noted that the Constitution was barely 10 years old and that it had not been followed to the letter, hence the prevailing impunity and snubbing of court orders.

“If we cannot implement what we have currently, the impunity that reigns supreme will continue and any amendments we make will be futile. You may have the best Constitution but the effort to change it may not be worth it,” she said.

Aukot said the BBI was repetitive and directionless and that it did not bring any new ideas to the table. He instead called for the implementation of reports by the Kriegler and Truth, Justice and Reconciliation commissions, among others.

According to Karua, only a national conversation can bring about the needed reforms. She called on Kenyans to fight corruption, saying the vice was not just an “elite problem”.

“We have accountants that pay undelivered tenders. We need this to stop. We need engineers to start delivering properly constructed roads so people can have services.”

The panellists said they had faith in Kenyans, and that the country needed more than a few civil societies, activists and individuals, not necessarily elected officials, to get involved in championing proper governance and demanding reforms and accountability.

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