In Summary
  • Talk about changing the Constitution has been rife in Kenya again since the secret deal between President Kenyatta and Mr Raila Odinga made public on March 9

  • Politicians, and Kenyans in general, should be ready to take politics out of Constitution-making and make this about creating a basic law that will serve posterity.
  • Now, beware. Politicians want a parliamentary system introduced, perhaps in 2022, with a new political dispensation.

On December 5, 2015, I called for a debate on the 2010 Constitution with a view to identifying those areas that needed refining and fine-tuning. The Constitution was then five years old.

I revisited the matter last year because in the lead-up to the August 8 General Election, the Jubilee Party and the National Super Alliance, as well as the National Council of  Churches of Kenya, suggested changes to the basic law.

Talk about changing the Constitution has been rife in Kenya again since the secret deal between President Kenyatta and Mr Raila Odinga made public on March 9.

NEUTERED

It is why I am also revisiting the matter and, as in 2015 and last year, it is my wish that this becomes a truly public, comprehensive and exhaustive debate. The matter is far too important to be left to the politicians. It was politicians meeting as parliamentarians in Naivasha in 2010 who neutered the Senate in the proposed draft, rendering it weak where the framers had made it a powerful Upper House.

MPs also shot down the proposed parliamentary system and instead settled for the American-style presidential system. Mr Odinga, who was expected to push for the parliamentary system, surprisingly embraced the presidential offer and ran away with it as if it was his own. In other words, the 2010 Constitution is a compromise document of the dominant political forces of the time: President Kibaki’s Party of National Unity and Prime Minister Odinga’s Orange Democratic Movement.

BOMAS DRAFT

Rewind to 2004 and to the people-anchored, grassroots-up, Bomas Draft Constitution of the Prof Yash Pal Ghai-led Constitution of Kenya Review Commission.

The struggle for a new Constitution boiled down to a fight over what were called contentious issues of parliamentary versus presidential systems and devolved democracy versus the centralised status quo.

The Bomas Constitution-making process was scuttled chiefly by powerful ministers led by Mr Kiraitu Murungi and Amos Kimunya, among others, who branded the push for the creation of a prime minister’s office as tantamount to a palace coup, and a draft that called for an elected yet ceremonial president.

Rewind further to 1991 and what is, in my view, most revealing about politicians and Constitution-making comes into view.

OXYMORON

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