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Why attempts to amend the 2010 Constitution have hit a brick wall

NATIONAL
By Allan Mungai | August 28th 2021

ODM leader Raila Odinga and Wiper leader Kalonzo Musyoka during a BBI rally at Kitui Stadium, Kitui County. [Dennis Kavisu, Standard]

The Constitution of Kenya 2010 enjoyed a honeymoon of only three years before its bliss was punctuated with calls to review the document.

In subsequent years, there have been several attempts to amend the 2010 Constitution, marking 11 years today.

From the Okoa Kenya referendum push by Coalition for Reforms and Democracy (CORD) led by Raila Odinga (ODM) and Kalonzo Musyoka (Wiper) to governors’ Pesa Mashinani and Constitution of Kenya (Amendment) Bill 2015 championed by senators to elevate Senate as the Upper House.

Then came Punguza Mizigo Kenya initiative by Thirdway Alliance after the 2017 elections, and now the Building Bridges Initiative (BBI) push by President Uhuru Kenyatta and Raila.

Dr Ekuru Aukot-led Punguza Muzigo initiative sailed through the signature verification, but was rejected at the county assemblies stage when it failed to gain the support of the requisite 24 assemblies.

In 2016, Okoa Kenya Initiative by defunct CORD was thrown out by the Independent Electoral and Boundaries Commission (IEBC) at the signature verification stage on the basis of “incomprehensible writings and drawings.”

“Since the promulgation of this Constitution, the need to amend it was on the table. There have been over 20 attempts at amendment,” said lawyer Paul Mwangi.

Civil society activist Davinder Lamba views all attempts to amend the Constitution as geared toward pursuit of self-interest. He said the document has never been fully implemented.

“The problem is our politicians chasing their own interests,” he said.

Parliamentary initiatives to amend the Constitution mostly driven by need for self-preservation include changing the election date, removing lawmakers from the class of State officers, placing the Equalisation Fund under the management of the constituency, protecting the Constituency Development Fund, prohibiting the courts from ruling on matters in Parliament and making it tougher for MPs to lose their seats for missing sittings.

The first attempt to amend the 2010 Constitution, through a parliamentary initiative, failed when senators in bi-partisan approach were pushing to have the Senate become the Upper House only to find the sections targeted protected as provided for in Article 255.

In 2015, Raila, Kalonzo and Ford Kenya leader Moses Wetang’ula, under CORD which lost to President Kenyatta and Deputy William Ruto’s Jubilee Alliance in 2013, launched the first popular initiative dubbed Okoa Kenya.

President Uhuru Kenyatta with DP William Ruto on the campaign trail, 2017. [Maxwell Agwanda, Standard]

This was followed by the governors’ Pesa Mashinani initiative, which sought to increase funds from at least 15 per cent to 35 per cent by amending Article 203.

The Governor Isaac Ruto-led crusade also targeted the County Policing Committee, which they sought to chair, and ensure functions assigned to counties and still held by the national government are devolved, among others.

When this failed, after the 2017 polls, Dr Aukot’s Punguza Mizigo and then the Building Bridges Initiative (BBI) kicked in.

To sponsor such amendments using popular initiative, the proponent must collect one million signatures from registered voters before the Bill is cleared by the Independent Electoral and Boundaries Commission (IEBC) and sent to the 47 country assemblies then introduced in Parliament. A national referendum then follows.

CORD’s Okoa Kenya failed the verification test of the 1.4 million signatures it had collected. Punguza Mizigo was turned down by the county assemblies. BBI passed both tests but has been stopped on account of illegalities after it was declared unconstitutional by the courts.

An appeal to the Supreme Court is, however, in the works though Uhuru and Raila have said they respect the Court of Appeal decision to uphold the High Court ruling.

Law Society of Kenya (LSK) President Nelson Havi said the Constitution had been written to resist unconstitutional amendments.

“This Constitution has not suffered a single amendment since August 27, 2010, an indication of its strong spirit,” said Havi.

Changing the election date from August 2017 to December would have given MPs four more months in office. The amendment was proposed by Ugenya MP David Ochieng.

The Constitution of Kenya (Amendment) Bill 2015 sought to change the General Election date from the second Tuesday of August in every fifth year, to the third Monday in December every fifth year. While that attempt failed, there were similar proposals made during the 11th Parliament.

Section of Parliament Buildings, Nairobi. [File, Standard]

The Bill to amend Articles 260 and declassify MPs as state officers came at a time the House was wrangling with the Salaries and Remuneration Commission and by ceasing to be classified as State officers, Parliament would have had a free hand to increase their salaries as they saw fit.

Others who would no longer be in the class of State officers would be Members of County Assemblies, judges and magistrates.

Samburu East MP Lati Lelelit presented to the House one of the first Bills to amend the Constitution in 2013 when he proposed amendments to Articles 204 to remove the disbursement of the Equalisation Fund from the purview of the national government and transfer it to the constituencies with marginalised areas.

Meru Senator Mithika Linturi, then Igembe South MP, proposed an amendment to protect a sitting Deputy President from any liability in law, similar to the President.

Former Ainabkoi MP Samuel Chepkonga in 2016 proposed amendments to Article 88 of the Constitution that deals with electoral disputes suggesting an extension of the period of determination of petitions from 14 to 30 days.

Chepkonga said the proposed amendment would have given the Supreme Court sufficient time to not only declare a verdict, but also deliver the reasons for the decision along with the verdict.

Other attempts include one by Kericho Senator Aaron Cheruiyot to re-designate Nairobi County and to place it under the leadership of the national government. 

Parliament’s failure to enact the two-thirds gender rule led immediate former Chief Justice David Maraga to give an advisory to President Uhuru to dissolve Parliament.

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