Road to constitutional change not easy

The October 26, 2017 fresh presidential elections elicited divergent views including an unfounded narrative that there exists a looming constitutional crisis.

This is predicated upon a series of what appears to be choreographed events traced back to the Supreme Court decision invalidating the presidential election of August 8, 2017.

The Supreme Court directed the Independent Electoral and Boundaries Commission to conduct a fresh presidential election within 60 days.

IREDUCIBLE MINIMUMS
Nasa, captained by Raila Odinga, is seeking to deny President Uhuru Kenyatta any legitimacy.

Nasa leaders have resorted to creating a constitutional crisis by subverting the sovereign will of the people.

This was demonstrated through the mischievous and unrealistic “irreducible minimums” list, the call for countrywide protests under the banner of “No reforms no elections”, the alleged withdrawal of the candidature of the Nasa coalition, the acts of intimidation of the electorate and public officers working with the IEBC and the calls on Kenyans to boycott the elections and participate in demonstrations on the election day.

These were all part of calculated attempts to destabilise the country, create economic sabotage, destroy private and public property and cause anarchy and despondency amongst the citizenry and create an illusion of a constitutional crisis.

CONSTITUTION

However, one must appreciate the structure and specific architectural design of our Constitution before assuming a constitutional crisis exists.

While the Constitution outlaws any attempt to establish a government otherwise than in compliance with the Constitution, it provides for a mechanism for its amendment. 

The current constitution informed by our political history and weary of possible mischief by the political elite, entrenched a very rigid mechanism for its amendment to protect against its dilution.

Our Constitution can be amended either through parliamentary or popular initiative.

REFERENDUM

Amendment by parliamentary initiative has strict and prolonged timelines and it would take an estimated 130 days to amend it using this initiative.

There are specific provisions in the Constitution that cannot be passed without reference to the people of Kenya through a referendum including amendments relating to the term of office of the President, the Bill of Rights among others.

Once Parliament passes a constitutional amendment that requires referendum, the Independent Electoral and Boundaries Commission is required to conduct, within 90 days, a national referendum for approval of the Bill.

CRISIS

Where the proposed amendment requires approval by a referendum, the process is prolonged further and it would take an estimated 230 days being seven to eight months. 

Due to the rigorous procedures encompassed in the parliamentary initiative of amending the Constitution, all the 10 attempts to amend the Constitution by Members of the National Assembly since 2013 have been unsuccessful!

The process of amending the Constitution by popular initiative is not easier. It is even more rigorous.

While it is common practice during a period of crisis to call for immediate response to prevent a country from plunging into chaos, those propagating the false idea there exists a constitutional crisis, need to rethink the debate. 

DIALOGUE

History is inundated by evidence of nations that casually sought to abandon the existing constitutional order only to find themselves plunged in untold and regrettable chaos. 

This is not an option for Kenya.  

The calls for negotiations while legitimate must operate within the current design of our Constitution.

All persons and all institutions must responsibly embrace the values of patriotism, rule of law and democracy. 

Mr Njomo is the MP for Kiambu Town