Yes, open up Constitution, but don’t plunge country into chaos

With the political class closing ranks at the weekend, it is highly likely that the country is headed for another referendum soon.

Many Kenyans will recall scenes from the symbolic Uhuru Park in August 2010 as the new Constitution — hailed as the most progressive on the continent — was promulgated before an exuberant crowd.

There were deafening shouts as a beaming President Mwai Kibaki held aloft the new Constitution. Seven out of 10 Kenyans gave the Proposed Constitution a resounding endorsement. Indeed, the agitation to overhaul the 1963 Constitution was a long-drawn-out struggle punctuated with blood and sweat.

In fact, the new Constitution was the product of the National Dialogue and Reconciliation Agreement signed by Mr Kibaki and Raila Odinga to end two months of violence following the disputed presidential results in the 2007 elections.

Mr Kibaki had been declared a winner; while Mr Odinga protested that his win had been stolen.

The National Accord as the document came to be referred had four Agendas; Agenda 1 was to stop the violence; Agenda 2 was to promote healing and reconciliation; Agenda 3 dwelt on how to overcome the political crisis; Agenda 4 (considered the most critical) would address the underlying causes of the violence and one way of doing that was through a new Constitution.

The feeling was that so much power and resources concentrated at the centre was a recipe for the cataclysmic political competition which consequently precipitated the loss of limb and life. So why not create more avenues for sharing the spoils after an election through say, devolution?

Besides that, to many Kenyans, a new Constitution would cure corruption by promoting accountability, strengthen critical institutions including the Judiciary, the Legislature, the elections bodies, promote inclusivity, reduce inequality and generally, make life better for everyone. No longer will Kenyans see a tribesman winning the presidency as giving one a leg-up in the ladder of opportunity.

But alas! We were wrong.

The bitterly fought 2013 and the 2017 General Elections was a sober reminder that not much had changed.

It is evident that the new Constitution has not drained the hatred, the partisanship, the anger and deep-seated tribalism out of our politics. It has not cured corruption nor reduced the stakes at the centre.

Though elections were held as scheduled, they weren’t sufficient enough to cause the change the people envisaged; the people had expected that the new Constitution would create strong institutions to uphold the rule of law and ensure that the media operates freely and the civil society agitates without state encumbrance.

It now seems (justifiably) that the new laws did not create an honest system where those who lose, like say in an electoral contest, concede knowing they will live to fight another day.

Increasingly, it looked as though incumbency would be rewarded over and over. Those with power fight to hold on to it by hook or crook; those without it fight tooth and nail to get it. In fact, the government remains an exclusive club of a few tribesmen because the barriers to the ‘high table’ remain too rigid and too high.

But then since the last elections, the drumbeats for changing the Constitution have grown louder by the day.

Last month while declining to sign the Finance Bill 2018, President Uhuru Kenyatta seemingly suggested that the 2010 Constitution had created a gargantuan government that was costly and unsustainable.

Of course, there are those who think that an overhaul of the Constitution will not in itself, cure the country’s challenges. Certainly, there is some good in the 2010 Constitution.

Some of the noble ingredients of the new Constitution include a robust Bill of Rights; a clear separation of powers between the Executive, the Legislature and the Judiciary. The most radical inclusion was devolution. Keen to disperse power and resources, the drafters of the 2010 Constitution created 47 devolved units.

Yet to many Kenyans, the soft issues of Agendas 1, 2 and 3: national healing and reconciliation by addressing the underlying issues of poverty, inequality and exclusivity largely remain unaddressed.  In spite of a new Constitution, our politics remains toxic, rancorous and highly divisive. To the winner goes all the spoils; to the loser nothing literally.

So should we throw out the baby with the bathwater? Not at all.

One can’t miss the strong sense of déjà vu; the protracted contest in the aftermath of last year’s elections strongly suggests that the underlying problems that the new Constitution had sought to address still loom large. To nearly half of Kenyans, the glass remains half empty.

We have seen how an overbearing Executive has ridden roughshod on the other arms of Government; it has smothered the independence of the Legislature and undermined its ability to hold the others accountable.

We witnessed as President Kenyatta and his Jubilee Party denigrated the Judiciary after the annulment of his win in the August 8 election. By and large, we are not yet out of the woods.

To the extent that the 2010 Constitution needs to be relooked, we support the efforts to streamline the administration in a bid to make it lean, cheap and efficient in delivering service to the people. Why for example was the Provincial Administration retained in its entirety? Such that you have two governments running parallel to each other?

Of significance too is that the new referendum should seek to restore the governance system by undoing some of the glaring reversals made so far on the original document.

The political class (for obvious reasons) watered down Chapter Six.

And against the persuasion and the wisdom of many, President Kenyatta rallied Jubilee MPs to pass the controversial Security Laws (Amendment) Bill 2014 that gave the Executive the powers to appoint and sack the Inspector General of Police. Because it has been at the beck and call of the powers-that-be, the police has been used to kill and to maim and to generally submerge a culture of fear in the society.

Giving the authority to appoint to an independent body like the National Police Service Commission was one way of addressing that. Mr Kenyatta used the pretext of the spate of terror attacks then, to get rid of David Kimaiyo and appoint Joseph Boinnet.

This newspaper supports efforts to make government an enabler of private enterprise rather than a doer of things. The case of Safaricom PLC- East and Central Africa’s most profitable corporate-is a lesson on how less government involvement unshackles business. Indeed, part of the reason for the depressed economic activity is because government imagines that it is in business to create big things for the people.

It would also help if the referendum question (s) will not — like in 2005 — sow seeds of division and acrimony.

To avoid that, issues should be thrashed out well before it is put to the vote as it happened in 2010.

The Constitution should bind us, not divide us.

But even then, there are a few housekeeping issues to deal with. Kenyans should believe that their vote will count in the referendum.

One way of ensuring that is by fixing the IEBC in good time. And that time is now. There should be no pretext for another bout of acrimony and violence.