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Why all 24 attempts to change Constitution came a cropper

Mwai Kibaki displays a copy of the New Constitution after its promulgation at Uhuru Park, 27 August 2010. [File, Standard]

The plan to create four new counties is another attempt to test the strength of the Constitution.

Since its promulgation on August 27, 2010, there has been 24 attempts to alter the Constitution and all of them have fallen by the wayside for one reason or the other.

The 13th National Assembly, even before its members warm their seats, has alluded to three amendments without really adverting their minds to Chapter 16 on the amendment to the Constitution.

There is a proposal to amend the constitution and remove the presidential term limit, an amendment to entrench the NG-CDF in the Constitution and the amendment to create four more counties.

The political class has never been at ease since Kenyans bequeathed themselves the new Constitution after almost 30 years of clamour for a new order.

In constitutional law and theory, a constitution either exhibits a rigid or a flexible characteristic. The drafters of the Constitution ensure these characteristics by making it quite onerous to amend a constitution or simply having it amendable without much effort. This is mostly spelt out by the process and procedures of amendments.

The independence constitution was definitely a flexible constitution while the 2010 Constitution is rigid and that is why it is able to endure several onslaughts by Parliament or politicians to amend it!

The 1963 constitution of had 38 amendments before it was repealed in 2010. The most significant amendments involved a change from a parliamentary to presidential system of governance and from a multi-party democracy to one party dictatorship.

The net effect of all amendments was to substantially alter the Constitution, concentrating power on the executive arm of the government and weakening the Judiciary and the legislature.

The natural consequences of this was wanton corruption and violation of fundamental rights and freedoms as the Judiciary, which is supposed to protect the citizen from the excesses of the Executive, cohabited with the latter.

The scheme of the new Constitution, its history, structure and nature protects itself from the fate of the Independence Constitution by substantively limiting the power of parliament or any other person to amend it to suit the conveniences of time. The structure and history of the new Constitution makes it plain that it was the desire of Kenyans to barricade it against destruction by political and other elites.

It is beyond peradventure that Kenyans bequeathed themselves this Constitution against the will of some political elites.

In the Building Bridges Initiative case, the court held that "Kenyans were keen to ensure that their bequest to themselves would not be abrogated through either incompatible interpretation, technical subterfuge, or by the power of amendment unleashed by stealth. One must also remember our peculiar history and the reason why it was necessary to limit the power of Parliament to amend the Constitution or rather make it extremely difficult to do so...’’

If Parliament is allowed to alter the Constitution any time to suit the exigencies of the times, the architecture and design of the Constitution would be compromised losing internal consistency by eroding certain constitutional values and principles like separation of powers and citizen sovereignty.

The political, commercial and religious elite did not get what they wanted in the 2010 Constitution and therefore there is a deliberate and systematic scheme to quarter it, water it down, dismember and all but obliterate the promise of freedom for the citizens and limited government that it provides.

Any proposal to increase the number of counties must satisfy both procedural and substantive law to go through. Chapter 11 of the Constitution provides for the form and content of how this is to be done. First, there must be a resolution recommended by an independent commission set up by Parliament. It must be supported by at least two-thirds of both Houses.

Substantively, the boundaries of a county may be altered to take into account the population density and demographic trends; physical and human infrastructure, historical and cultural ties, the cost of administration, the views of the communities affected the objects of devolution of government and geographical features.

-Mr Suyianka is an advocate of the High Court

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