Re-thinking the Constitution too critical to be left to Uhuru, Raila

Among Kenya’s thinking and general public, there’s a universal consensus that the Constitution of Kenya needs rethinking.

That’s because the public believe, inter alia, that Kenyans are over-represented; there is wanton wastage in both county governments and the national government; corruption has run rampant in the governments; and the governments’, especially the National Government's, programmes promote exclusivity instead of inclusivity.

That is, the public want the Constitution to address the misuse and abuse of public wealth and plunder of the public purse. Kenyans also want a government that works for all in all parts of the country and for the growth and improvement of the lot of all. Yes, inclusivity.

And they are persuaded that they are not that many of them to be represented by more than 400 MPs, 47 Deputy Governors, 1,500 ward reps or; shoulder a weak and ineffectual Senate.

The foregoing issues are aptly captured in the Thirdway Alliance’s brilliant blow-by-blow referendum proposal graphically titled Punguza Mizigo (Lighten/Reduce) the Loads). That’s also the thrust of Gatundu South MP Moses Kuria’s Punda Amechoka (The Donkey is Exhausted) initiative.

President Kenyatta and Mr Raila Odinga, on the other hand, want the Constitution changed to allow for creation of new offices in the Executive, including a prime minister’s, and to accommodate those who lose in first-past-the-post polls. This, President Kenyatta and Mr Odinga claim, will avert violence at election cycles. They are saying fix ye first the governance structure and we will be in Canaan of everlasting prosperity.

President Kenyatta and Mr Odinga are calling for a referendum on a false prospectus. Yet, their handpicked 14-person Building Bridges Initiative (BBI) team is overloaded with addressing tribalism, national ethos, divisive elections, security and corruption.

Five questions arise. One, are all these issues raised by the public and politicians deserving of constitutional redress? No. The Constitution and other laws address the matter of corruption for example. The chapter on leadership and integrity addresses the issues raised above. The Constitution and other laws, however, cannot enforce themselves. There has been no violence caused by the winner-takes-all poll format. Poll violence has been a function of political instigation and rigging of elections.

Two, should Kenya hold a referendum this year? Kenyans are being stampeded into this referendum because it has a nakedly political agenda. But this scheme remains as elusive to the public as the details of the March 9 contract on Kenya between President Kenyatta and Mr Odinga remain secret and exclusive.

Three, who will draft the referendum question? And, four, what will the question be? In other words, whose process is this? The referendum and BBI are issues of the marriage between the President and Mr Odinga. But the Constitution which they target is the property of the people of Kenya. It is the people who should own the instruments and process of rethinking the Constitution.

Mr Odinga owns BBI and so far owns the referendum. This privatisation of a public asset and process and exclusion of the owners from the two is unacceptable usurpation and marginalisation.

The previous constitution was so battered and mutilated as to be unrecognisable because it became a plaything for the political class. Rethinking the current constitution must be an inclusive process.

Such rethinking will prioritise a question around strengthening devolution for inclusive development. The Odinga-led change appears focused on political offices and power.

Last, why is rethinking the Constitution linked to uniting the country? The plebiscite will be contested and will therefore be divisive as regards objectives, timing, question and process. Indeed while BBI is premised on elections being divisive the referendum is touted as aimed at uniting Kenyans. But you cannot unite Kenyans by excluding their leaders as Mr Odinga declaims, “leave me alone to unite the country with (President) Uhuru.”

Unity is a powerful catchphrase that has been invoked through the years for mobilisation in pursuit of, or protecting, power. So Kenya became a de facto (1964) and later de jure (1982) single party state for peace and unity.

Jubilee was created in 2016 to unite Kenyans. In 2012 Mr Kenyatta and Dr William Ruto formed the UhuRuto alliance to unite Kenyans. In 2002 Mr Odinga’s National Development Party merged with Kanu to unite Kenyans.

No. The contract between President Kenyatta and Mr Odinga is about the changeover of power, ditto their interest in changing the constitution. But rethinking the constitution is too important to be the preserve of politicians.

Mr Opanga is a commentator with a bias for politics; [email protected]