In our concerted effort to amend the Constitution, we must tread carefully

What you need to know:

  • But this is not to say that every important issue should be the subject of a referendum. Issues should only be the subject of a referendum if, in addition to being of great national importance, circumstances, times, and necessity provide compelling justification.
  • Those calling for amending the Constitution do not seem to recognise the need to have a firmly entrenched Constitution that is not subject to frivolous tinkering.
  • That said, there is no good reason for the citizenry to lose sleep over the possibility that a few could possibly hijack the Constitution and change it to suit their whim.

In a letter to Samuel Kercheval in 1816, Thomas Jefferson observed that some men ascribed to an outmoded notion that the constitution is infallible and therefore untouchable.

“They look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched”.

Later in 1823, President Jefferson sought to dispose of that intellectual tradition in sentiments contained in a letter to A. Coray, by stating that… “Whatever be the Constitution, great care must be taken to provide a mode of amendment when experience or change of circumstances shall have manifested that any part of it is unadapted to the good of the nation… a greater facility of amendment is certainly requisite to maintain it in a course of action accommodated to the times and changes through which we are ever passing.”

It is now evident that a constitution is neither infallible nor static and should change with times and circumstances.

It is in line with this principle that our Constitution provides for mechanisms for its amendment under Article 255. These include amendment by parliamentary initiative as provided under Article 256, and by popular initiative (referenda) under Article 257.

Article 255 (d) provides a catch-all provision under which, basically, any issue can be subjected to a constitutional referendum.

But this is not to say that every important issue should be the subject of a referendum. Issues should only be the subject of a referendum if, in addition to being of great national importance, circumstances, times, and necessity provide compelling justification.

Moreover, before embarking on any amendment to such a young Constitution whether by referendum or otherwise, there is a need for pause, to retrace our steps and see where we went wrong during the enactment, if at all.

To recapitulate, this time in 2010, Kenyans hailed their new Constitution as their very own Magna Carta, highly extolling its qualities. Though considered atypically lengthy for a constitution at 49,632 words as compared to the US constitution at 4,400 words, it received universal accord as one of the best in the world.

But, the process of birthing it involved gerrymandering, posturing, and political bickering that left outstanding a few contentious provisions, but which all agreed to live with by virtue of the Constitution’s enactment through a democratic process.

Now as Kenya finds itself mired in a fervent clamour to amend its young Constitution by referendum, a process aggressively driven by the opposition Cord, observers are wondering what has changed between August 2010 when it was enacted and now, to warrant change.

FRIVOLOUS TINKERING

Those calling for amending the Constitution do not seem to recognise the need to have a firmly entrenched Constitution that is not subject to frivolous tinkering.

The Constitution cannot be treated like any other piece of legislation. It is not. It is meant to encapsulate general principles and not to regulate.

It is not the place for translating policy into law meant to manage micro-elements that need technical attention such as security.

Though not an inflexible tool of government, a constitution must have an appearance that promises permanency.

On timing, proponents of the referendum argue that it is not too soon to amend the Constitution, giving an example of the US, which amended its constitution in 1891, four years after its adoption.

However, citing the US example without explaining the context of the 1891 amendment is misleading. That amendment consisted of the first portion of the Bill of Rights, which would include nine later amendments.

Indeed, the first 10 amendments to the US constitution did not seek to change the structure, processes, or procedures of government like in the Kenyan case, but rather merely sought to enact, entrench, and expand civil liberties.

That said, there is no good reason for the citizenry to lose sleep over the possibility that a few could possibly hijack the Constitution and change it to suit their whim.

This is because, as a safeguard, the Constitution is sufficiently protected from unwarranted tampering by its own restrictive provisions under articles 255, 256 and 257.

Ms Njogu is an Attorney and counsellor at law practising in Maryland, USA. ([email protected])