NAIROBI: The 2010 Constitution is still in its infancy, having barely lived a life of over four years. Jurists, politicians, academicians and indeed most informed citizens wonder if it is opportune to have a rethink on the new constitutional order.
The weighty question before the 2017 elections is whether the Constitution has and will in future serve the aspirations of the country. Constitutionalism is defined as a living entity.
The first Kenyan Constitution was amended 23 times; the American Constitution has been amended 27 times and the Indian Constitution 98 times.
This shows that amendments are indeed necessary to correct national weaknesses and also to adapt to changes that come with time.
The process of amending the Constitution is expensive, long-drawn, intricate and entails various steps which include parliamentary initiative where an amendment bill is introduced to either of the Houses of Parliament.
Two-thirds of the members in each house must vote in favour of any envisaged amendment and public discussion is mandatory.
An example of parliamentary initiative is the Constitution of Kenya (Amendment) Bill 2015 that seeks to amend the Constitution by changing the existing date for the General Elections from the second Tuesday of August in every fifth year, to the third Monday in December every fifth year.
A Bill can also be brought by the public by popular initiative where at least 1 million registered voters sign and formulate a Draft Bill and deliver it to the Independent Electoral and Boundaries Commission for verification, after which it is submitted to the county assemblies and then to the Houses of Parliament if approved and then the above-mentioned procedure takes place. If an amendment relates to supremacy of Parliament, the national territory, sovereignty, principles of governance and national values, Bill of Rights, terms of the president and the system of devolved government, no amendment can take place without a referendum.
The referendum requires support of 20 per cent of the registered voters in each of at least half of the counties in the country. A simple majority on the referendum carries the day.
With the knowledge that the next election will be on August 8, 2017 and that on August 28, 2015 the new Constitution will have been, by law, fully implemented, what then are some burning constitutional issues which need national debate?
The provision that the Supreme Court decides on disputes relating to presidential elections within 14 days must be reconsidered. The present provision is humanly unrealistic and a proper time frame and better procedures need to be thought out. The office of the Chief Justice needs to be re-evaluated. The threefold and sometimes conflicting duties of one person being the Chief Justice, the President of the Supreme Court and also the chairman of the Judicial Service Commission is a recipe for conflict of interest.
Efficacy of the two-tier parliamentary system, the Senate and the National Assembly, needs to be rethought. Is the Senate a necessary body in this country given the fact that its role is really a carbon copy of the role of the National Assembly?
The tripartite functions of the National Assembly, the Senate and the County Assemblies vis-a-vis enacting laws so far has not manifested into any meaningful phenomena.
It is also important to rethink Article 204 of the Constitution which establishes the Equalisation Fund. The Fund is managed and controlled by the National Government which has the power to utilise the funds.
The problem now is that we have a devolved system of government so an amendment should be sought to ensure that the Equalization Fund is assigned proportionally to the counties. In terms of Presidential elections, the Constitution in Article 138(4) of the Constitution states that “a candidate shall be elected as president if the candidate receives; a) more than half of all the votes cast in an election and b) at least twenty five per cent of the votes cast in each of more than half of the counties”.
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Should Presidential elections be determined by an Electoral College rather than popular vote? An electoral college has been suggested by some in which in order to be declared a winner, an aspirant must receive at least more than half of the 431 college votes cast by MPs, senators, women representatives and governors elected in a general election.
In the parliamentary system, the votes at county level for governor, senator and MP will determine the president’s votes. This system, as the proponents argue, will reduce tribalism, electoral fraud and end marginalisation.
It may seem too early to make changes in the Constitution given the tender age of our Constitution but opening up frank, reasoned and non-partisan debate on national concerns prior to the 2017 elections is well worth it.