The perfecting of our commonwealth requires regular audit and review of its founding compact.
Kenya’s constitutional contract ushered in after a decade-long struggle and adopted through the widespread involvement of the people barely 10 years ago, is the subject matter of yet another round of demands for amendments.
Similar to previous efforts, current demands are framed in progressive terms: to make governance more inclusive, government more efficient, elections more credible and liberties more secured. The interests and motivations of reform ventures undertaken in the past, however, seem to have failed to yield the desired result since they never were driven by a deep and abiding national interest.
Instead, the underlying leitmotif was always about capturing and controlling State power. It appears that whenever post-independence hegemonies are threatened, the convenient strategy is to take the people on a merry go round of another constitutional reform project.
Present designs at reforms warranting calls for referendum must, therefore, be scrutinised to determine the integrity of their motivation, to protect the people from being engaged in meaningless exercises that will yield little with regards to the enhanced well-being of the Nation.
By the 1990s, the Lancaster House constitution that ushered in Kenya’s independence had been stripped and eviscerated of critical safeguards and was no longer adequate to facilitate the progress of a viable State.
The over-concentration of power in the President combined with the centralisation of the country’s economic resources around Nairobi, and its environs produced a toxic brand of brazen corruption, political patronage of all sectors of public and private life, and ethno-regional inequalities, among many other state deformities.
Even the protectors of status-quo and permanent residents of the deep State conceded that, without some kind of constitutional changes, the potential for State collapse and dismemberment were real. As a matter of political survival and self-preservation, constitutional review became a stop-gap measure for managing state descend into chaos, rather than deliberate attempts at realigning state structures to Kenya’s 21st century realities and the capacity of its economy.
Thus, in one stroke, Moi’s 1992-2002 presidency was revived and rationalised by the decision to amend the constitution to abolish the de-jure one party system, permit proliferation of political parties to operate and set presidential term limits.
When Kibaki’s turn came, he did not disappoint. A hurriedly convened constitutional conference at Bomas urged on by activists and promoters of an idealised form of statehood, crafted an ambitious constitution that proposed a return to a Majimbo state of fourteen regions and a more or less parliamentary Executive.
These proposals alarmed the deep State resulting in the revisionist Wako Draft constitution that failed to garner support at the 2005 referendum but proved politically pivotal, as it succeeded in mobilising political interests and aggregating them under the Orange Movement, the progenitors of the ODM party. The fragmentation and political fallouts of the 2005 referendum would, however, deepen political polarisation, creating a climate that catalysed the horrors of the 2007 post-electoral violence.
A country broken, deeply fractured, uncertain and herded to a corner by the international community that viewed a new constitution a non-negotiable necessity to state stability, adopted the 2010 constitution. Though excellent in many respects, the 2010 constitution is not without deficiency.
Foremost among its challenges is the over-representation in political institutions at the national and county level, which has created enormous bureaucracy and a debilitating wage bill. The pursuit of representative democracy appears to have been such a primal consideration that the constitutional compact was willing to internalise all its costs without regard to the sustainability of resulting benefits.
Since the processes that gave birth to the 2010 Constitution were primarily informed by political consideration, the outcome became victim to interest group capture. This epistemic capture is evident in the number of constitutional commissions with inadequately defined mandates, duplication of roles and lack of oversight.
As ends unto themselves, institutions that were meant to preserve the sovereignty of the people by acting as checks and balances to executive excesses, have become handmaidens of political, sectarian and personal interest.
The enclave deliberations in favour of a referendum currently advanced by political actors appear to be nothing but a chorus of sentiments satiating citizens’ sensibilities into an admission of another crippled constitutional reform process.
The end of such a jaundiced process will be, either a compact adopted to suit the transient whims of the present owners of Kenya Inc. or a failed process that will polarise the country further, making 2022 a divisive and perhaps violent interregnum.
A more logical process, founded on goodwill for the country’s long-term stability, would instead invest in a comprehensive audit of the current constitution by a credible body, that would result in a set of prescription on how to address emerging constraints based on a clear cost-benefit assessment.
Moreover, a clear referendum law, to delineate how and when to conduct a multi-issue plebiscite, a likely scenario in the present attempts at reforming the Katiba, needs to be negotiated and enacted. Absent such a deliberate approach, it is not unfeasible that the outcomes will usher in greater legal and political uncertainty across various sectors rather than the desired stability.
(Sing’Oei is the Legal Advisor and Head of Policy, Office of the Deputy President – views are personal)