The problem stems not from the law but its implementers

In the nature of public debates on important issues, there is always the danger of the discussion generating more heat than light; of the legitimate emotions on the issue overriding the facts; of passion blurring the issues.

In giving themselves the 2010 Constitution, Kenyans reserved the right to amend the same Constitution.

In particular, Article 257 provides for a popular initiative to amend the Constitution. Wanjiku has an unequivocal and unconditional right to amend the Constitution at will. That is not contestable!

That said, I have previously expressed the view, which I still firmly hold, that at this moment in time, it is not in the interest of implementation of the collective will of the people of Kenya that is the Constitution of Kenya 2010, to divert the nation’s energies away from such implementation, to a campaign to amend the constitution.

That it is in the circumstances, premature and prejudicial to amend the Constitution.

This is a view that I have expressed from the very moment of the initial calls for amendments, long before the current debate.

In the past, some Kenyans urged that the Constitution be amended to remove the Senate and/or certain other institutions such as the Salaries and Remuneration Commission, to reduce the number of counties and/or constituencies, even to do away with devolution on the alleged grounds that it is too expensive!

Even currently there is a school of thought that transfer of the health function for example, has been beset with too many challenges and should revert to the National Government.

On all these issues, my argument has been that it is only after we have fully endeavoured to faithfully implement the provisions of the Constitution that we may conclude there is a need to amend the Constitution.

Are there legitimate concerns touching on the implementation of constitutional provisions as have been expressed by various proponents for amendments? Without a doubt!

The transition to devolution for example, while generally acknowledged as being largely on track, clearly has challenges arising from the process of transfer of functions, as well as faltering intergovernmental relations.

IMPORTANT ISSUES

In the debate surrounding the current proposals to amend the constitution, several issues have featured, including questions of equality, inclusivity, regional balancing and representation of Kenya’s diverse communities in the public service.

Even without delving into the merits of the various arguments, I share with the proponents the view that these are important constitutional issues which we must get right as we implement the Constitution.

There are issues which implementers of the Constitution, and in particular government at both levels, as well as other state agencies, must be held to account.

This is that point at which I part company with proponents of amendments to the constitution at this point.

In the absence of demonstrable harm or prejudice to Nekesa that would arise from pursuing the implementation of the 2010 Constitution, I hold the view that it is only such implementation that can provide the looking glass through which we can evaluate our constitution and have a basis to consider its amendment.

My view is buttressed by the fact that virtually on every issue that has been substantively mentioned in the referendum debate, even a cursory analysis shows clearly that the challenge is with implementation, not with the document.

It is not by accident that, with the exception of the division of revenue where the governors have made a specific proposal, all other issues have, to date, been mere expressions of areas which clearly concern Kenyans, without suggestions of what or where in the constitution the alleged problem lies.

For example, Kenyans are constitutionally entitled to security. They are constitutionally entitled to fair and equal treatment.

On both counts, government at both levels must be held to account, because on both counts, as well as others, their constitutional obligations are clear.

It is my submission that we cannot seriously expect to implement our constitution and promote constitutionalism, if every time either government or any other implementing agency defaults or is slack, we seek to amend.

MISLEADING SLOGAN

Perhaps the issue causing the greatest excitement in the current debate is the push to amend Article 203 of the Constitution to increase the division of national revenue to counties.

The slogan Pesa Mashinani sounds catchy, but in my view is both misleading and unhelpful to Jepkoech.

In my view, devolution is about Huduma Mashinani. Devolution is about two levels of government, each of which must deliver on specific functions to Moraa, down to the lowest level, in accordance with the allocation of functions in the Fourth Schedule.

For example, the County Government must deliver to Wanjala on Health as must the National Government deliver to her on security.

A major part of the current challenges the counties have faced arises from the deliberate failure by the governors themselves to follow the law, and in particular Section 15 of the Fifth Schedule to the Constitution and Sections 23 and 24 of the Transition to Devolved Government Act.

The chickens have come home to roost as a result of the combined choice of both the governors and National Government opting for political expediency, rather than follow the law, in the transition process.

In addition there are clear inefficiencies in the National Government that have impacted on the transfer of functions, and I certainly do not discount resistance to aspects of devolution by some National Government officials.

The inexplicable delay in establishing the intergovernmental mechanisms has compounded this scenario.

Way forward? The solution lies in implementation. It’s all about delivery. Funds follow functions.

Mr Nyachae is chair, Commission on Implementation of the Constitution