There’s no crisis to warrant constitutional changes
By Mwongela Mbiti
It has been an interesting period since March 9, 2018 when President Uhuru Kenyatta and Raila Odinga called a truce. In this event, famously known as the Handshake, the two leaders made a declaration to cease all hostilities between them and find common grounds in the interest of moving the country forward. A document signed by both leaders and titled Building Bridges to a new Kenyan Nation was launched in the same month, highlighting nine issues to be addressed with an aim of creating a united nation.
A programme commonly known as the Building Bridges Initiative (BBI) was established to assist in the implementation of the shared objectives. The initiative’s taskforce was officially gazetted on the May 31, 2018 with a one-year term. The team commenced their task from the first week of June 2018, and in May 2019, had their term extended by five months until this month to present their report to the two leaders.
The handshake ended the acrimonious political rivalry between the ruling Jubilee Party and the National Super Alliance (Nasa). The 2017 presidential election caused aggravated the bitter rivalry between the two coalitions, throwing the country into turmoil especially after Uhuru’s victory was nullified by the Supreme Court and subsequently winning a repeat election that was boycotted by his opponents.
The post-Handshake politics have seen political realignments and shifts of loyalty caused by jitters of imminent betrayal of Jubilee political promise and memorandum of understanding between the President and his deputy Wiliam Ruto. Raila’s “entry” into the Jubilee boat and the trust he has earned from the President—real or perceived—has led to speculations that the President harbours the intention of abandoning Ruto through the BBI in the guise of uniting the country.
It’s October and the BBI team is yet to present its findings to the President. This has escalated unmeasured speculations on what could be the content of its report. What is evident, however, is the inevitability of a constitutional referendum in view of the architecture of the BBI public hearings, the content of the views presented and the frustrations and hostilities the Ekuru Aukot-sponsored Punguza Mizigo Bill faced.
The question that experts and Kenyans are asking in view of the history of comprehensive constitutional reforms across the world is; is there a crisis in Kenya of sufficient magnitude to trigger a constitutional change?. In my view, the political turmoil experienced before and after the 2017 elections did not elicit issues that warrant change of a Constitution that is only eight years’ old.
The contentious issues for consideration by BBI raised by the President and Raila are legitimate, as for the first time, Kenyans began having hard conversations about inclusivity; strengthening devolution; sustainability of the debt portfolio; corruption and building of strong accountability institutions.
The lie, however, that has been told too many times, is that a change in the Constitution is the silver bullet to resolving our problems. In reality, Kenya’s problems are a direct result of systemic failures and national attitude towards good governance, accountability, electoral justice, the rule of law often perpetrated by the political elite—not a fault in the Constitution.
The constitutional changes proposed by the BBI are elitist model of maximum reform that will only give the political class another opportunity to rebrand and reintroduce themselves and their proclivities. The forest may change, but the monkeys will remain the same.
—The writer is an advocate of the High Court of Kenya
