By prof Kivutha kibwana
Revising Kenya’s 2010 Constitution would be in tandem with Africa’s contemporary constitutional practice,Some protagonists in the debate have advocated the rationalisation of Parliament and counties so as to tame the public wage bill.The constitutional review debate is gathering momentum eight years after the Constitution was promulgated. Why is this the case?In 2010, supporters of the draft social contract argued the 20 percent defective portion could be altered later.Also, some other issues such as non-inclusive power-sharing have come to the fore. Further, some compromises reached during the final constitutional negotiations introduced flaws within the pact calling for correction.
Those who oppose constitutional adjustment argue the 2010 pact needs more operational life for its real gaps to become evident.Some think the Constitution has not so far been faithfully implemented. To these the problem is not the constitutional text but rather the political will to enforce its letter and spirit.
This category believes opening the 2010 law may place in jeopardy some of its progressive content.Many anti-change advocates believe the touted proposal of enlarging the executive is about accommodating the political elite, not promoting the common good.Is it too early to review the 2010 law? In the late 50s and 60s, African countries won political independence under new constitutions.From 1989 to the dawn of the 21st century, Africa’s “second liberation” has produced relatively democratic constitutions.Civil societies and the citizens themselves have pushed for people-driven constitutional reforms, including the promulgation of entirely new constitutions to replace the illiberal constitutional order birthed by one-party dictatorships or military regimes.
Revising Kenya’s 2010 Constitution would be in tandem with Africa’s contemporary constitutional practice.If the country decides constitutional review is necessary, what process should we adopt? It took us about 22 years from 1988 to 2010 to agree on our current Constitution.Some of this period was used for agreeing on the necessity for constitutional change.More time was allocated to the process to ensure the resultant Constitution would be owned by the people, and finally most of the period was reserved for content negotiations.The Building Bridges Initiative (BBI) grew out of the March 9, 2018 initial “handshake” of President Uhuru Kenyatta and ODM leader Raila Odinga.Although the BBI representatives chosen by the two statesmen have solicited views from a section of Kenyans on the changes needed to stabilise our political system, their report is likely to capture only the country’s preliminary consensus.
More stakeholders need to be identified and brought on board through a structured process.Let us remember the 1997 Constitution of Kenya Review Act had to be amended in 2001 to provide for an agreed process of constitution-making.
Any current constitutional revision should be protected from ab initio charges of exclusion of some of the critical stakeholders who participated in the Bomas, Ufungamano and civil society processes.To what extent should we revise the 2010 constitution? Before embarking on the review journey, we need to agree on some key rules of engagement.Some of these could be: honestly revisiting the 20 percent of the previous draft constitutions which was deferred; continued implementation of the existing Constitution in keeping with the rule of law, constitutionalism, good governance and accountability doctrines; no repeal or watering down of the basic progressive structure of the 2010 pact; adherence to minimalist review; further enrichment and entrenchment of devolution; popular creation of the new constitutional proposal and approval by the people of Kenya.
What needs to be changed?
Of course, the citizens of Kenya will decide. However, so far several stakeholders have placed their preferences on the table.
The focus of a significant section of the political class concerns the restructuring of the national executive so that it can accommodate the offices of the president, deputy president, prime minister and two deputy prime ministers.Some of these politicians prefer a parliamentary system in which the prime minister is elected by the National Assembly and is the chief executive while the President is largely a ceremonial head of state.The majority, as of now, seem to support the type of executive introduced after the 2007/8 civil strife. Then the prime minister coordinated government on behalf of the president.
The restructuring of the national executive, it has been further suggested, should involve, inter alia, Cabinet ministers being chosen from both inside and outside the National Assembly; and existence of a dignified office of the opposition.The proposed five key offices, it is argued, could be occupied by diverse representatives of Kenyan ethnic communities so as to eliminate the perennial dissatisfaction occasioned by “the winner takes it all” electoral reality.But still the other 40 or so communities would argue their key politicians are not in key positions. Therefore, electoral justice would have to still be firmly secured.
The question must be asked: Are there other effective ways of addressing ethnic diversity and animosity, such as strengthening devolution?Will economic inclusiveness at the grassroots be a better guarantee of political stability? Or should we aim at both political elite accommodation and grassroots inclusiveness?Some protagonists in the debate have advocated the rationalisation of Parliament and counties so as to tame the public wage bill.But research has shown that these institutions only consume about five percent of the national annual budget.
Rationalisation may be supported more by an efficiency than cost argument. The Council of Governors, the County Assemblies Forum and the initial Okoa Kenya Initiative have advocated that the counties’ equitable revenue share be raised from the current 15 percent to 45 percent of the national budget.
The referendum may rise or fall on this issue. County assemblies are not likely to vote for their own demise (at least 24 of them must support a referendum) or meagre funds going to devolved units.A structured and broad-based forum for negotiating possible constitutional reforms is likely to lead to a non-contested referendum.Just like one of the proposals is the restructuring of the national executive to avoid a winner-takes-it-all scenario, we must also in a possible referendum avoid a situation in which the plebiscite majority become another “winner takes it all”.
Prof Kibwana is the Governor for Makueni