Constitutional change without respect for rule of law will not bear fruit

Judiciary staffer carries a constitution dummy ahead of the president's swearing-in at Kasarani in September 2022. [Denis Kibuchi, Standard]

During the past week, parliamentarians from the minority and majority sides came together to form the National Dialogue Committee (NDC) to facilitate national dialogue and build consensus.

As part of its duties, it will recommend constitutional, legal, and institutional reforms and establish a Framework Agreement to guide bipartisan discussions.

In recent weeks, the Kenya Kwanza and Azimio sides have agreed to engage in bipartisan talks to resolve the impasse between the government and opposition following a spate of protests that have injured and killed people and impacted businesses.

This meeting will address a number of proposed topics, including the reconstitution of the Independent Electoral and Boundaries Commission (IEBC), the implementation of two-thirds gender equality in elected and appointed public offices, the legitimacy of constituency development funds, and the re-establishment of the Opposition Leader and the establishment of the Prime Cabinet Secretary.

Based on the stated agenda and creation of the NDC, constitutional amendments are likely to be the logical conclusion of the bipartisan talks. It is similar to the Building Bridges Initiative (BBI), which was the culmination of an agreement between former President Uhuru Kenyatta and Opposition Leader Raila Odinga following a similar situation of protests characterised by injuries, death, and destruction, economic boycotts, and arrests. What remains to be seen is whether the parties will be guided by the Supreme Court decision on BBI regarding how to amend such laws.

For instance, any amendment proposing CDF enshrinement into the constitution must proceed through a referendum process. The reason for this is that it will alter the design and structure of the Constitution. Many wonder how CDF will be legitimised because, on the face of it, it violates the principle of separation of powers and the structure and principles of devolution.

It is noteworthy that the Supreme Court in 2022 declared the NCDF in violation of the constitution. Despite the Supreme Court decision, the NCDF is alive and well, and 2023 funds continue to be disbursed. Article 255 (1) of the Constitution similarly requires a referendum when the structure of Parliament and the presidency is altered.

This means that the establishment of the Leader of the Opposition or the Office of Prime Minister will be subject to a plebiscite. Observers are concerned that another round of constitutional amendments led purely by politicians will undoubtedly lead to a document of political expediency rather than a genuine national good and the interests of the "sovereign" people of Kenya.

Kenya has a very progressive 13-year-old constitution that puts the citizen at the centre and has many progressive tenets. Nevertheless, political parties, leaders, state institutions, and duty-bearers are systemically undermining and disregarding it. It may be the case that constitutional changes are inevitable - but how do we ensure that these changes are people-focused?

It was Prof Okoth Ogendo who famously described "the paradox of constitutions without constitutionalism". Generally, constitutionalism emphasises the rule of law, the limit of government power, the separation of powers, and the protection of the marginalised and minorities and individual rights within the constitutional framework.

Thus, countries adhering to constitutionalism adhere to the principles and values set forth in their constitutions such as Article 10. It includes respecting court orders and decisions, regardless of whether you agree with them. Furthermore, it ensures that government actions are in accordance with established norms and rules.