Attempts to amend the Constitution since President Uhuru Kenyatta’s first term in 2013 have generated a lot of debate and created major political realignments.
First came the Punguza Mizigo initiative by Thirdway Alliance, led by lawyer Ekuru Aukot, which was defeated at the County Assembly stage.
It ran parallel with another campaign by the Coalition for Reforms and Democracy (Cord) that opposition leaders Raila Odinga (ODM), Kalonzo Musyoka (Wiper) and Moses Wetang’ula (Ford-Kenya) launched after the 2013 presidential election.
Known as the Okoa Kenya initiative, Cord collected the one million signatures required by law to amend the Constitution but they were rejected by the Independence Electoral and Boundaries Commission (IEBC).
The last attempt to change the Constitution under Uhuru’s tenure was the Building Bridges Initiative (BBI) fronted by President Kenyatta and Raila. The initiative enjoyed massive political goodwill from a section of Jubilee Party leaders and the entire ODM fraternity but collapsed through legal challenges.
Constitutional law experts have argued that the current Constitution could have served the country better had it been fully implemented and put into good use.
Lawyer Bobby Mkangi argues that the current law is like a willing spirit in an unwilling body, because it has everything to deal with corruption, good governance and human rights but whose implementation has failed.
“We have a good spirit but unfortunately the body both politically and socially is not up to task and that is where we have gone wrong,” the lawyer said in an interview with KTN News.
Nonetheless, attempts to change the supreme law created a lot of excitement in the country, especially when Third Way Alliance introduced the Punguza Mizigo initiative.
Members of county assemblies were elated because it was rooting for the creation of more wards and money for the grassroots offices.
Upon realising the enthusiasm caused by Punguza Mizigo, politicians from both the mainstream opposition, National Super Alliance (NASA), and the Jubilee government turned their guns on Aukot and his team.
County assemblies and ordinary Kenyans were reveling in Aukot’s proposal to have the number of lawmakers in Parliament reduced from 416 to 147 as a cost cutting measure.
Lawyer Kamotho Waiganjo told The Sunday Standard that the move by Third Way Alliance to fix salary caps for MPs at Sh300,000 and the president’s at Sh500,000 was among the reasons it never survived.
The proposal that each county gets one male and female nominated MP was also frowned upon by MPs from counties with large populations that rooted for more representation.
Not well intentioned
Kalonzo then jumped into the debate and termed Punguza Mizigo as “poison offered in a golden chalice”.
He said it purported to offer a panacea to high cost of running the government but clawed back gains on equitable representation at both county and constituency by drastically reducing the number of elected representatives.
The ODM party also became very vocal against Punguza Mizigo, dismissing the initiative as non-inclusive, half-baked and not well intentioned.
Senior lawyers in the party, led by Siaya Senator James Orengo and Rarieda MP Otiende Amolo, urged Thirdway Alliance to wait for the report by the BBI that had been launched after the March 2018 handshake between Uhuru and Raila.
Orengo said questions in Aukot’s proposals did not undergo stakeholders’ consultation and urged Kenyans to wait for the BBI report.
They argued that only BBI had all issues the people of Kenya were asking for and it would have given the way forward on the changes of law.
In July 2019, the 1.2 million signatures presented to the IEBC by the Aukot-led group were certified, giving them the greenlight to proceed with the referendum process.
Intense lobbying against the process by other players, however, increased, leading to many county assemblies rejecting the Punguza Mizigo Bill, despite many of them earlier welcoming the proposals.
The High Court also issued temporary orders barring MCAs in the 47 counties from debating or approving the Bill after a petition was filed.
Aukot accused “selfish politicians” who opposed his initiative of sponsoring the petition.
Had the initiative been enacted, each ward would have received more than Sh200 million annually because revenue allocated to counties would have increased from current 15 to 35 per cent.
The Bill required support from 24 counties before being debated by the National Assembly, but it only received the nod of a few counties in Rift Valley.
So, Raila, Kalonzo, Wetang’ula and their supporters rubbed their hands with glee as they celebrated the fall of Punguza Mizigo with heightened expectation as they awaited the passing of the BBI Bill.
A few months after the March 2013 General Election, the trio had launched the Okoa Kenya collection of signatures initiative.
The Cord opposition team was pushing for a referendum timeline of April 2015 with a raft of proposals, including a big increase of devolved funds allocated to counties.
They also agitated for the establishment of the ward development fund and a more representative government.
By August 2014, Raila told Kenyans that Okoa Kenya had already collected 600,000 signatures as they pushed for the one million threshold.
The president and his deputy William Ruto strongly condemned the opposition for what they called attempts to destabilise the government and create positions for themselves.
“We have no time for changing the Constitution now because the government is focused on delivering services and development to the people,” said President Kenyatta in 2014.
Raila, however, insisted that the initiative was aimed at helping the president govern the country properly and also deal with grand corruption in government.
“The country has lost direction and I call upon the president to embrace a bipartisan approach in solving issues,” he said after returning to the country from London in 2015.
In November that year, Cord formally presented to IEBC 1.4 million signatures for verification in readiness for the referendum.
The process, however, collapsed in March 2016, when IEBC announced that only less than 900,000 signatures provided by Cord were authentic while the rest were either duplicated or not signed against.
“Analysis of the data presented by Cord showed that only 891,598 registered voters supported the initiative from the signatures presented,” said IEBC Chairman Issack Hassan.
A large number of the 741,979 rejected signatures also had duplicate identity card numbers while some sections of the booklets had incomprehensible writings and drawings.
Raila, Musyoka and Wetang’ula responded by dismissing the objections and accused the electoral body of colluding with the government to undermine their intended referendum.
That sounded the death knell on Okoa Kenya.
Focus then shifted to BBI, the brainchild of President Kenyatta and Raila’s handshake on March 18, 2018 that turned the political tide in the country.
The handshake changed the political landscape because it bridged the gap between the opposition and the government both inside and outside Parliament.
A faction of the government, led by the deputy president, protested and pushed their own political agenda.
The handshake also led to the fallout in the opposition ranks after ANC leader Musalia Mudavadi, Kalonzo and Wetang’ula accused Raila of dishonesty in his dealings with them.
“We were tired of being used and dumped by Raila and that is why we decided to chart our own course,” says Wetang’ula.
The BBI Bill would later get approval of 43 county assemblies, thus proceeding to National Assembly where it got legislators nod as it did at the Senate.
It would however face numerous hurdles, with the High Court annulling the process. Subsequent appeals would also fail in the higher courts, stalling the quest to change the Constitution, at least for now.