(…a friend once told me…always have your voice heard even if it be frail and shaky….never allow anyone to silence you…)
First, let me be abundantly clear that the discourse around and about the constitution amendment is very healthy and well within the confines of our Constitution of Kenya 2010 (COK 2010). Article 1 provides that the sovereign power belongs to the people and can be exercised either directly or through their delegates as is happening now. Article 3 charges all of us to defend the Constitution. It is therefore fair to say all people making their contribution for/or against BBI are well within their rights to do so.
Chapter sixteen in articles 255-257 provides for ways of amending the constitution either by parliamentary initiative or popular initiative. Where the issues for consideration touch on the 10 areas provided for in article 255 (1) then it must be through a referendum no matter who is pushing for it. That said any person or group of persons or associations can promote a constitutional amendment initiatives as we have witnessed before in Punguza Mzigo of Third Way alliance, ODM’s one and the Council of Governors one and now the BBI one by the Handshake brothers.
As many scholars, lawyers and even ordinary people like me have argued, there is no perfect constitution or law because the society is always changing and with it new challenges that require legal attention arise. I dare say not even ‘divine’ laws are perfect therefore to argue that COK 2010 is perfect is to live in denial. That said, we must then ask ourselves at what point and how often should we change or amend our Constitution? The answer is as and when absolutely necessary.
Ordinarily, citizens either because of excesses of their governments or on their own motion upon accepting that there exists serious grounds for constitutional changes, start clamoring for such changes as happened in Kenya in the 80s, 90s. it is such efforts that mostly lead to genuine constitutional changes. However, often, those in power also initiate constitutional changes to address issues that they feel need addressing or are making them uncomfortable…this is how the 1963 Constitution ended up being mutilated numerous times…before we the people enacted a new COK 2010 for ourselves. I will now delve into a few reasons why I believe that we do not have a constitutional moment with us yet as is being argued by the handshakers.
We have been told time and again that winner takes it all nature of our politics is the genesis of political violence and acrimony every five years and that expanding the executive to include the Prime Minister, 2 deputies and leader of official opposition among others will help bring many people to the table and thus reduce the likelihood of political violence. Well this may or may not be true but in my considered view the main reason there is violence every election cycle is because of mistrust, tribal nature of our politics and lack of integrity in the electoral process among other historical issues like land and resources sharing
In 2007/2008 for instance, the main issue was allegation of a stolen election and the fact that the Right Hon. Raila Odinga did not have faith in the judiciary as it was then constituted. In 2013 the Right Hon Raila Odinga pursued justice in the courts and respected the verdict even though he did not agree with it. In 2017 the Supreme court nullified the presidential election because it did not meet the Constitutional threshold of a fair and free election and then he declined to participate in the repeat election by giving irreducible minimum demands that were not met and eventually called for mass action that culminated in his ‘swearing in’ as the Peoples’ president …and handshake thereafter.
In all these cases, the simmering issue was the integrity of our institutions because those in power meddled with the institutions…the problem was not the constitution especially in 2013 and 2017: It was the failure of those entrusted with running our institutions to follow the provisions of the constitution to the letter. I have no issue with the inclusion of the PM and DPMs in our constitution because in the Bomas Draft we had put them there but our politicians went to Naivasha and removed them. I just need someone to tell me how will the losing teams be persuaded to respect the outcome of the elections in 2022 if the integrity of the process will not be guaranteed? How will BBI help?
Secondly, we have been told BBI will ensure there is inclusivity. I have not seen solid arguments on this because for us to address inclusivity, we need to ask ourselves how we ended up with a society that only a few enjoy the goodness of the land while the vast majority suffer in exclusion? Certainly our colonial history bequeathed us with a segregated community that our successive governments have continued to perpetuate. It is not by coincidence that the richest people in Kenya are those that have held powerful positions in government in independent Kenya… they looted and privatized public resources for their personal aggrandizement.
Few powerful people own huge swathes of land in prime places across the country such as Nairobi, Kiambu, Mombasa, Kenyan highlands, Rift valley to mention just but a few. In Kiambu for instance you will see huge pieces of prime land owned by a few people while majority of the ordinary folks have not a place even to bury their dead leave alone to build a house. Well, we have been told it was a willing buyer willing seller thing but in the fullness of time Someone…will dig from history to confirm if indeed that was the case. Owning tens of thousands of acres of land in Nairobi and Kiambu is not only obscene but also mind boggling….in the same places where Kenyans are living in the streets like stray dogs and cats…as others live in filth across the numerous slums in our cities and urban centres….one thing is clear… most of these properties belong to those that held powerful positions in government and their kinsmen/cronies over the years…without a doubt they abused their offices to amass wealth at the expense of ordinary masses in what has been described as primitive accumulation.
Under the current constitution, the issue of inclusivity is addressed in numerous provisions starting with article 10 all the way to 260 yet we have seen blatant disregard of these provisions in all state appointments and jobs, contracts etc. For example In a cabinet of about 30 people including the president, Deputy and AG you find 1 community with up to 5 slots… and as per the Public Service Report of inequalities in the Public Service, you will find a community that has no slots or just a few even in the junior levels in the public service. My question therefore is what stops the president now and today from appointing people from all other communities? If he is not appointing them to reflect the face of Kenya as required in the constitution, how will the BBI cure that?
Thirdly, we have been promised that 35% of the National Budget will go to the counties. This is a good thing if indeed it were to happen…but even before I delve into this, the current constitution allows anything above 15% to be allocated to the counties. So in my view we do not need to amend the constitution to give more resources to the counties, we just need to genuinely commit to supporting devolution by allocating more resources and promptly to the counties. Currently even the 15% is rarely given in time and Governors have to keep begging the big man to allocate resources. I am a strong supporter of devolution so any additional money to the counties is welcome but how will BBI ensure we comply with 35% even after we have struggled to comply with the 15%? Article 203 (2) says at least 15%….not at most but may be saying at least 35% is good….only if we will ensure the same is complied with.
Fourthly, the BBI seeks to remove the power of Parliament vetting state officers like Principal Secretaries and Secretary to the Cabinet. I am yet to understand what is informing this because my understanding is that Such State officers needs to be approved by the Peoples’ representatives in parliament before they can occupy those offices….what is the rationale of denying the people of Kenya the right to exercise their sovereignty? If you are afraid of facing your real employer why do you want the job? I know Amb. Monica Juma was denied the chance to occupy the position of the Secretary to the Cabinet by Parliament after Francis Kimemia left but in my view, parliament was exercising its role as required by the Constitution. I see no reason at all why the President would not want to have his nominees for state positions vetted by Parliament if indeed the intention is to serve the people of Kenya.
Fifthly, on the Judiciary Ombudsman and the DPP. Independent judiciary is a non-negotiable position because in 2007 many Kenyans died because political class did not trust the judiciary to adjudicate electoral disputes. Such scenarios should never recur in our history. That said, it is public knowledge that corruption is rampant in our judiciary, just as it is if not even worse in other arms of government, where often times justice goes to the highest bidder not to the rightful person. This calls for serious consideration in fighting corruption in the judiciary.
A Judiciary ombudsman is in my view a welcome move but the question is how should that person be appointed? In order to function as expected such a person needs to be independent and impartial… I do not believe the person should be appointed by the president. We have seen clear deliberate efforts by the executive and Parliament in trying to frustrate the judiciary for doing what the judiciary is actually meant to do and therefore entrusting either Parliament or Executive to appoint an objective ombudsman is hard for me to accept.
BBI proposes to have the DPP as an Independent office alongside the Auditor General and Controller of Budget to strengthen the office to fight crimes in Kenya. I support this move but I am not sure why then are we proposing to remove the provision on removal from office of the DPP. Is it for security of tenure or what? Every Public office should have a provision on how one can be removed from the office legally.
It is not possible to exhaust all issues in the BBI but having read and internalized the Constitution of Kenya (amendment) Bill 2020 as a Kenyan and a law student, I believe this is not the time to amend the constitution….not because of Covid….not because of other issues….NO! It is because in my humble view there are no sufficient justifications to warrant an emergency constitutional amendment of close to 60 Articles and sub articles in one stroke. The COK 2010 is solid and sufficient to address most of the issues being raised through BBI only if we have good manners to implement it genuinely…..we know what we need to do and we must do…inevitably, I find that BBI is a placebo for a disease that Kenya does not even have and therefore If it ends up in a referendum, I will vote NO to it because a NO for BBI is a YES for the current constitution that was the most inclusive process in the history of this country unlike the BBI one that is being promoted by two Kenyans with the support of their cronies and enablers…however, if majority of those that will vote for BBI carry the day, then as a Kenyan I will still be bound by the new constitution my rejection of it notwithstanding because that is the nature of our democracy….the Majority must have their way while the minority must have their say.
Sincerely Yours,
Sir. George M Mucee (LLB, BA, MA)