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President Uhuru’s case for constitutional change

By Eric Wainaina
Tuesday, June 2nd, 2020
National Assembly Speaker Justin Muturi with his Senate counterpart Ken Lusaka and Attorney General Kariuki Kihara during Madaraka Day Celebrations at State House, Nairobi, yesterday. Photo/PSCU
In summary
    • President Uhuru Kenyatta and his political nemesis Raila Odinga on March 9, 2018 signed a peace deal that has shaped the Kenyan social and political landscape in unexpected ways.
    • Ruto’s allies have been against BBI and have also been opposing the push for law change, terming it untimely initiative.

Eric Wainaina @Ewainaina

The clamour for constitutional change gained impetus yesterday after President Uhuru Kenyatta said a referendum, which has been a subject of a rift between his allies and those of his Deputy William Ruto, was inevitable for the country to improve on governance and inclusivity.

President Uhuru, who led the country in marking the 57th Madaraka Day celebrations from State House, Nairobi, said he was convinced a review of the 2010 Constitution is a must, saying it will help the country address some of the challenges facing it and which have continued to create hurdles to a progressive nation.

“Ten years later, I am already discerning a constitutional moment. Not a moment to replace the 2010 Constitution but one to improve on it.

A moment that will right what we got wrong in 2010 (when Kenya enacted a new set of laws).

But fundamentally, the constitutional moment I discern is one that will bring an end to the senseless cycles of violence we have experienced in every election since 1992,” the President said.

The move is likely to escalate the animosity between proponents of the Building Bridges Initiative (BBI) which is a product of the March 9, 2018 Handshake between the President and Opposition leader Raila Odinga, both who have been pushing for, among other things, an expansion of the Executive as a way for ending divisive elections.

Ruto’s allies have been against the BBI and have also been opposing the push for a constitutional change, terming it as untimely initiative meant to scuttle the DP’s bid to succeed Uhuru in 2022.

But the President, who was officially pronouncing himself over the matter for the first time, said there is a need for a change of the country’s governance system, hinting at expansion of the Executive, among other changes as proposed in the BBI report.

“We cannot re-imagine our nationhood without changing our political architecture.

And we cannot change this architecture without re-engineering our Constitution.

If we have done great things in the area of brick and mortar, the greater things that remain to be done have to do with our governance system.

And we must not be afraid of changing this system, if it does not serve our present purposes,” he added.

To back his argument that the country is already experiencing a constitutional moment, Uhuru said if certain sections of the Constitution outlive their historical purposes, “they become a cancer” and, therefore, must be done away with but if that will not happen they will infect the good elements of the mother law”.

Competition for the presidency, desire for inclusion in governance at the top levels, backed by ethnicised politics and competition for resources, emerged as the greatest contributors to divisive elections that rock the country after every five years.

During hearings by the BBI technical team, Kenyans, according to the report, associated the winner-take-all-system with the divisive elections, saying presidential contests “have taken the quality of a do-or-die affair”, and rigging becomes part of the plots.

The remedy, according to the BBI task force, should include creating the position of a prime minister who will be appointed by the President and a strong opposition where the runner-up of the presidential election becomes an ex-officio in Parliament.

Governance system

However, the report left room for improvement, and during the subsequent regional BBI rallies to enrich the document, leaders called for creation of a PM’s post and two deputies, and equal distribution of other government posts as well as resources as part of the cure to divisive politics.

Orange Democratic Movement (ODM) leader Raila, a proponent of a referendum to change the constitution, is on record insisting that the clamour for a constitutional review has not stopped and that the rallies would resume once the coronavirus pandemic ends.

The opposition supremo, who was the face of the post-Bomas BBI report campaign, said the task force spearheading the initiative was still at work and when normalcy resumes, the team will hand over the report. 

Yesterday, Uhuru retaliated remarks by independence hero the late Tom Mboya in which he warned against constitutional inflexibility, saying a country’s law “is not an end in itself; it is a means to a greater end”.

This, the Head of State said, informed the move by the late retired President Daniel arap Moi to repeal Section 2A of the independence Constitution in 1992, which had outlawed formation of other political parties.

“And this (when a section of law outlives is purposes) is why we removed Section 2(a) that had been added to the independence Constitution in the early 1980s.

We removed this section in 1991 to create a multi-party system. This section had outlived its historical purposes and it was morphing into a political cancer,” he said.

Further, following the 2007 post-poll skirmishes which claimed at least 1, 300 lives and displaced another 350, 000 people, Uhuru said the nation was forced to fix the National Accord and Reconciliation Act (NARA) into the Constitution to create the Grand Coalition Government and expand the Executive arm of government out of necessity.

During the Grand Coalition that was mediated by the late former United Nation Secretary Koffi Annan, Raila served as Prime Minister in retired President Mwai Kibaki’s government while Uhuru and Amani National Congress party leader Musalia Mudavadi served as deputy prime ministers.

Further, Uhuru announced that he will not relent in his war against corruption which has split his allies and those of his deputy, saying the country’s civic culture need to be transformed.

He said when Chapter Six of the Constitution was written, it was meant to bring the civic culture to order but it had proved difficult to police a political culture which in the words of Cannon Donaldson of Westminster Abbey thrives in “politics without principle, wealth without work, pleasure without conscience, knowledge without morality, science without humanity and worship without sacrifice”.

“If we are to push the re-set button and re-imagine our dreams as a nation, we must transform our civic culture to one that is biased towards duty, hard work and integrity,” the President said.

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