Constitution should be amended progressively
Derrick Makhandia
The Building Bridges Initiative presents an interesting aspect in Kenya’s constitutional journey.
It is possibly the biggest drive to amend the Constitution since the 1990s movement that led to the current constitution. The BBI, however, presents more of a constitutional overhaul than a change.
The difference between the two is that an amendment is based on a precise proposal that affects one aspect of a constitution, while an overhaul presents a massive multi-sectional change in the Constitution.
A scrutiny of the report reveals proposals that are cross cutting and can immensely alter the institutional set up of the country.
This kind of constitutional change poses several problems. Firstly, it poses a challenge to the public by offering only two choices; to either take it in its entirety or reject it altogether.
An individual could have strong support for the proposal to strengthen devolution but oppose the proposed parliamentary structure.
Placing such a multi-faceted proposal to a single vote will lead to an outcome that is not accurately reflective of a nation’s desire.
It also makes the decision-making process prone to political interference as the country can no longer hold a proper conversation over the proposals.
Furthermore, such a drive could lead to certain issues being given prevalence over others.
The BBI report has, for instance, attracted more debate proposal on the prime minister’s position than on regional integration, education or corruption. This creates the impression that the report is based on the single issue.
The Brexit campaign is a clear example of basing a multi-faceted campaign on a single issue. Brexit proponents framed it to largely on the problem of immigration and ignored its economic impact. The voters supported Brexit but seemingly showed dissatisfaction with it by voting in an anti-Brexit Parliament in the subsequent elections.
Lastly, constitutions thrive in stability. A constitution that is susceptible to changes is bad for the law, society and economy. Amendments may fix loopholes but open the door for further changes.
The former Constitution had over 20 amendments between 1964 and 2001 which made it unstable. A single massive change will even aggravate the instability.
The best way to amend the Constitution is through small progressive changes that lead to a more efficient and desirable document in a process that involves the people.
This way, the Constitution and society grow steadily fitting into each other’s principles, desires and aspirations.
The most efficient approach could be to divide BBI proposals into thematic areas and have separate conversations and decision making on each.
The amendment process also needs to be primarily based on interest and involvement of the people. The cost of conducting a referendum can never justify the need for excluding the public.
A proposal as far-reaching as the BBI must not be left to politicians. Parliament has on many occasions frustrated constitutionalism, lacked objectivity and was guided by political and personal interests. The principals must drive this process towards the ballot.
Non-State actors and the academia also need to play a prominent role in this discourse. They should analyse the Constitution, identify likely challenges and all alternatives. Since constitutional changes are inherently political, non-State actors are our greatest source of objectivity.
Even as we welcome the BBI conversation, we need to be guided by these facts.
We must also remember that the current Constitution has been touted as one of the most progressive in the world. For this, we must be objective, rational and jealously protect every good thing about it.— The writer is the regional officer Transparency International Kenya
