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Constitutional amendments should strengthen our institutions

OPINION
By Demas Kiprono | May 14th 2021
Parliament in session during day two of the two days special sitting to deliberate on the BBI among other issues. April 29, 2021 [Elvis Ogina, Standard]

Currently, there is fervour over the prospect of constitutional amendments brought about by the BBI process, specifically the Constitutional Amendment Bill recently endorsed by the Senate and National Assembly.

If the courts give the process a nod, and it successfully goes through a plebiscite, certain fundamental changes regarding the structure of the executive, governance, the Judiciary, policing, salaries and remuneration among other issues, will change.

Constitutions the world over are designed to stand the test of time. However, from time to time, they are amended to reflect the times, wants, needs and lessons learned by the people the constitutions govern. 

A major bone of contention is whether a popular initiative process of constitutional change has unfettered ability to amend the Constitution, including the creation and allocation of new constituencies. One school of thought is of the belief that if the laid down process is followed by the promoters of the amendments, then whatever comes out of the process is constitutional, whereas others believe that certain amendments are unconstitutional in the face of it. For instance, if one of the proposals was that the Judiciary is abolished, or made subordinate to the executive, such an amendment would be illegal on the face of it and goes against the structure and design of the entire constitutional architecture since 2010.

History teaches us that constitutional amendments and law-making generally, can be legally done with devastating consequences. In 1935, Germany, under Hitler’s Nazi regime, passed the Nuremberg laws that discriminated against people of Jewish ancestry and set the stage for the holocaust/genocide of 6 million Jews. The laws were rationalised by politicians and scientists who relied on the pseudo-science of racial purity also known as eugenics. Lawyers, doctors, nurses, police officers, soldiers and the public went along with it. In South Africa and the US, similar beliefs and laws were used to disenfranchise people based on identity. Ironically, these laws were seen as bona fide by the societies at the time and the legal systems defended them.

After World War II, countries began adopting constitutions that emphasise human rights such as non-discrimination, equality, equity and the protection of minorities. Bearing in mind our colonial and post-colonial history, Kenyans in 2010 gave themselves a Constitution that tries to balance principles of one man one vote while protecting minorities; emphasises the sovereignty of the people; sets up three co-equal arms of government bound by national values and principles of governance such as patriotism, human rights, participation of the people among others.

As we embark on possibly amending the Constitution, the political class, the courts and Kenyans must constantly memorialise our history to avoid pitfalls such as tribalism, selfishness and corruption that have bedevilled us and prevented us from uniting as a country and keeping to the promise of the rule of law, equality before the law and democracy.

Part of this process is appraising why certain aspirations under the 2010 Constitution have not been realised. This discussion is meaningless unless Kenyans reckon with why our vital institutions, especially those charged with oversight and constitutional mandates seem to be becoming weaker than when they were set up.

For instance, over a year after the National Commission on Human Rights chairperson and commissioners’ terms expired, the Executive has not moved to replace them, thereby jeopardising the protection of human rights of all Kenyans.

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