EDITORIAL: Kenyans must be heard in Constitution debate

Monday June 01 2020

The thrust of President Uhuru Kenyatta’s Madaraka Day speech was constitutional change.

Emphatically, he stated that this is the constitutional moment. Implicitly, the country should get ready for a referendum in the near future to change the Constitution and, in particular, deal with the architecture of governance with emphasis on inclusivity.

Lacing his speech with quotes from historical figures, freedom fighters and the Scriptures, he declared that a constitution is not an end in itself; it is a living document that ought to respond to the needs and aspirations of a nation. That, indeed, is a settled fact.


Yet, that is the challenge Kenya faces. We entered into a new constitutional order in 2010 without a change of mindset.

We created novel chapters and provisions but never gave them life. It is what experts call constitution without constitutionalism — the latter referring to political thought concerned with the architectural structure and basic values of society and governance.


President Kenyatta’s position brings to fore the ongoing work under the Building Bridges Initiative that he forged with Opposition Leader Raila Odinga.

At the core of BBI is change of governance to allow for inclusivity, end acrimony and resolve cyclic election violence.

Even so, the push for constitutional change is open to debate. It is not for want of legal provisions that the country has experienced violence, suffered endemic graft, economic stagnation and consigned millions of citizens to poverty.


When Kenya ratified the current Constitution, its hallmark was dispersal of powers by creating institutions and structures with inherent checks and balances.

Core to it was devolution, which birthed 47 counties with assumed independence and which were envisioned to give the citizens a voice to articulate issues that affect them, and at the national level a bicameral Parliament — the National Assembly and Senate.

Sadly, the two Houses have been engrossed in supremacy wars rather than deepen democracy.
Various chapters of the Constitution anchor values and ethics in national governance. But these are never applied in national politics and government appointments.

Individuals with a known criminal record occupy national offices. The Executive runs roughshod over the other arms of government, including the Judiciary, making the principle of separation of power a mere abstraction.
As framed, the Constitution has not been fully implemented.

Several provisions remain in limbo due to the unresponsive nature of the political class. An example is the provision of one-third gender rule.

And in a challenge to the fidelity to the letter and spirit of the Constitution, although it advocates meritocracy and equity in public appointment, the reality is different.

Granted, the Constitution has served Kenyans well. Devolution has, for one, brought cash and development to the people. Public participation has become part and parcel of governance, giving people a chance to make decisions at their levels. But it has inherent weaknesses.

The most visible is exclusion, where election winners take everything and losers thrown to the periphery.

Further, the Constitution has been faulted for being top-heavy, having created several superfluous institutions that have proved burdensome to taxpayers yet do not add value to governance.

Some of the benefits of devolution have been squandered by extension of graft to the grassroots. Inevitably, therefore, there is merit to review the Constitution.
The stage is now set for political debate. Experience since 2005, when we went for the first constitutional referendum, is that the debate is easily lost in the ensuing political noise.

Politicians frame issues and rally their supporters to back them blindly. We should not allow that to happen again. The question Kenyans should ask is: What is the problem with the Constitution? The weaknesses? The cure? Who should implement it?

We raise these issues because the quest for a perfect constitutional order has been long and arduous. The Independence Constitution was solid but messed up through numerous amendments — the worst of them being introduction of Section 2A in 1982 that made the country a single party state.

Subsequently, the country entered a three-decade journey that realised the 2010 Constitution, itself now a subject of debate.
Kenyans should be vigilant. They should enter into this debate with a sober and critical mind, make their views open and stop politicians from taking control of it.

Not when the debate is coming against a backdrop of presidential succession schemes. Failure to do so will see the country dancing around the same spot.