Our Constitution is not perfect, but we must not rush to amend

The conservatory orders granted by the High Court preventing the assent into law of the Constitution of Kenya (amendment) Bill brings to serious doubt the eventual passage of this controversial constitutional amendment.

Intended principally to constitutionalise the National Government Constituency Development Fund (NG-CDF), it had added two sweeteners, the National Government Affirmative Action Fund (NGAAF) targeting County Women Representatives at the National Assembly and the Senate Oversight Fund, to win support from Senators.

It is a mark of the testy relationship between the National Assembly and the Senate that the Bill, which had received unanimous support at the National Assembly, has lacked enthusiastic support at the Senate since its submission. My focus however is not so much on the merits or otherwise of the attempts to constitutionalise a fund that all courts have consistently deemed fundamentally unconstitutional.

To be honest, away from constitutional purity, there is a part of me that understands the necessity of NG-CDF for Members of Parliament. Anyone who doubts the financial pressures that MPs go through should read AAA Ekirapa’s memoirs “Wings of Ambition”. It is a frank exposure of the other side of politics away from the glamour that we focus on. Until we change the culture of handouts and dependence on politicians by the voters, it is hypocritical to demonise CDF which for many MPs is the only guarantee against financial ruin.

This is part of the honest conversation that Kenyans must have. My focus however is on failure of MPs to recognise that the 2010 Constitution is a fundamental shift from the 1964 Constitution with respect to the power of MPs to alter the Constitution. Students of Kenya’s constitutional history will know that between 1964 and 2010, the constitution was amended more than 30 times.

Most of those amendments were regressively anti-people. Their primary focus was strengthening the Executive against all other arms of government, creating what was eventually termed the “imperial presidency. They weakened oversight organs including the Judiciary and removed human rights protections that the Constitution had guaranteed. Some of these amendments, including the 1975 one that enabled Mzee Kenyatta to pardon his detention mate Paul Ngei, were effected in one afternoon.

These historical experiences informed the laborious process of amending the current Constitution. Not only must all amendments go through a period of public participation, but they also cannot be rushed through Parliament. Between the first and second reading of an amendment Bill, there is a mandatory period of 90 days. To protect critical constitutional provisions, Article 255 requires that certain Articles of the Constitution, including the devolved system, cannot be effected by Parliament alone. They require adoption through a referendum. The further hurdle to amendments by Parliament has been a more independent and assertive Judiciary. In several instances, including the less known attempt to reduce the powers of the Salaries and Remuneration Commission to determine MPs salaries, the infamous BBI process and the current attempt to constitutionalise NG-CDF, the courts have said Nyet to Parliament. Such stoppages have been met by anger and gnashing of teeth, sometimes accompanied by threats to reduce the Judiciary’s budget, but the Judiciary ploughs on undeterred.  

What is clear is that but for the constitutional safeguards and the courts single minded desire to protect the constitutional order, the 2010 Constitution would already be a pale shadow of itself. It is however notable from the NG-CDF attempt that endeavours to adjust the Constitution will not end. Flowing from Parliament’s frustration, we will probably see attempts that outflank Article 255 by subjecting amendment proposals through referenda. Having played a small role in the Constitution’s enactment and implementation, I am aware that CoK 2010 is not perfect and requires some changes.

However, I also know many of the proposed changes are not progressive but an attempt to claw back on pro-people provisions. My view therefore remains that for now, until we have solidified a culture of basic constitutionalism and respect for the rule of law, the Constitution should be retained as is, warts and all. Let us spend more energies in implementing its myriad provisions, including Article 43 on social economic rights, before we rush into the unknown specter of its dismembering.   

The writer is an advocate of the High Court