Why Uhuru Kenyatta wants to change Kenya's Constitution

President Kenyatta on Monday gave the clearest indication yet that Kenyans will hold a referendum on the Building Bridges Initiative (BBI).

“…[I]n 2010 we formulated and adopted a new constitution, altogether replacing the independence constitution. Ten years later, I am already discerning a constitutional moment. Not a moment to replace the 2010 constitution but one to improve on it,” the President said during the 57th Madaraka Day   speech at State House, Nairobi.

With a flailing economy and a fractious ruling party to boot, the President has hinged his legacy on uniting the country, and the roadmap to this is through the BBI.
President Kenyatta and former Prime Minister Raila Odinga have been burning the midnight oil in the drive to amend the Constitution through a referendum by the end of this year.

CONSTITUTIONAL MOMENT

In his 57th Madaraka Day address at State House, Nairobi, attended by Mr Odinga and Deputy President William Ruto, among other dignitaries, the President said it’s “a moment that will right what we got wrong in 2010.

But fundamentally, the constitutional moment I discern is one that will bring an end to the senseless cycles of violence we have experienced in every election since 1992.”
He said the amendments he was discerning will deepen the country’s democratic credentials and lead to a much more inclusive society.
“I believe this was the intention of the framers of the 2010 Constitution,” he said.
He pointed out that 50 years ago, Tom Mboya warned Kenyans against constitutional rigidity.
“He told us that a constitution is not an end in itself; it is a means to a greater end. It is a living document. And if certain elements of the constitution outlive their historical purposes, they become a cancer.

“They must be removed or they will infect the good elements of the mother law,” the President said.

SECTION 2(A)
He went on: “And this is why we removed section 2(a) that had been added to the independence constitution in the early 1980s.

“We removed this section in 1991 in order to create a multi-party system. This section had outlived its historical purposes and it was morphing into a political cancer.

“Then after the 2008 violence, we embedded the National Accord and Reconciliation Act into the constitution to expand the Executive arm of government. This happened out of historical necessity.”

He pointed out that “we cannot re-imagine our nationhood without changing our political architecture. And we cannot change this architecture without re-engineering our constitution.”

He hinted at a change in the country’s governance system saying: “We must not be afraid of changing this system if it does not serve our present purposes. The second thing that remains to be done is the transformation of our civic culture. Culture is at the core of re-imagining a national dream. And when the drafters of Chapter 6 of our constitution put pen to paper, what they wanted was to bring this culture to order.”

TRANSFORM LIVES
He said that the country yearns for political leaders  committed to promoting, not self, but what will transform people’s lives in line with what the founding fathers yearned for.

“Indeed, as Martin Luther King Jr said: ‘We need political leaders not in love with money but in love with justice. Not in love with publicity but in love with humanity.”’

Mr Odinga, who has disclosed that the BBI steering committee’s report was at an advanced stage, exuded confidence that Kenyans could go to the referendum by the end of this year.

“During this Covid-19 break, we gave the steering committee an opportunity to continue with their work based on the resolutions of our rallies, and the work is at an advanced stage. We will subject the document to legal legislative action in both parliaments then the  referendum will follow, probably by end of this year,” Mr Odinga said during a recent interview.

Mr Paul Mwangi, the BBI steering committee co-secretary was, however, non-committal on the status of their report when reached by the Nation.
“We shall communicate officially at an appropriate time,” he said in a text message.
The Nation also established that the team was putting final touches to the report, which will be presented to the President and Mr Odinga this month.

“It is no secret that the country is headed for a referendum and it will be soon. Already, a referendum question has been suggested as: ‘Do you approve the proposed amendments to the Constitution?’ but it is still subject to approval by experts based on the steering committee’s recommendations,” said a source familiar with the  committee.

BBI DOCUMENT

He said that implementation of the final BBI document will be structured in three parts namely: administrative, through Parliament,  and finally a national referendum. “Certain findings will be handled administratively, while another category will be handled in Parliament and put in the statutes accordingly, and finally a national vote through a referendum,” the source said.

Senate Majority Chief Whip Irungu Kang’ata, and his National Assembly minority counterpart, Mr Junet Mohammed, said  indications point to a referendum by the end of the year. Mr Kang’ata said the referendum budget will be provided for in the next two weeks.

“Yes, a referendum will happen. The budget set to be unveiled in two weeks will set aside the money for that,” Mr Kang’ata said.
“I have it on authority... The only problem is the Covid-19 pandemic, but by September, we will have reopened the country hence a referendum in October,” he said.

Mr Mohammed said they expect the referendum before the end of the year. “The BBI team is concluding (the report), they had timelines and by end of the year we will hold the referendum vote,” Mr Mohammed said.
Kieni MP Kanini Kega, a close ally of the President, also said Kenyans will have the referendum before the year ends.

REFERENDUM
“I’ve no doubt that we will do so by end of the year since it will not be a contest but an endorsement,” he said.
The only impediments to a referendum in the course of this year, he said, is a budget, management of Covid-19 and management of the bills by both Houses of Parliament.
But Mr Kang’ata exuded confidence that the budget issue will be solved in a fort-night.
ODM National Treasurer Timothy Bosire said: “We hold the two principals, President Kenyatta and Mr Odinga, responsible for the future.

“We see them on course and wish them well as they cannot be doing anything else other than for the good of this country. We wish them good navigation for the benefit of  citizens and the country,” Mr Bosire said. Tiaty MP William Kamket noted that the President and Mr Odinga will deliver the plebiscite as “they suggest.”

Political analyst Herman Manyora said: “Uhuru and Raila have the secret to 2022. They know who will be in power and the formula for sharing the power. What they need is the referendum to achieve this.

“For this reason, a referendum is a must and they will have it. Nothing will stand in their way, not even corona. The BBI is their infrastructure to remove obstacles from their way.”

SUCCESSION POLITICS
Mr Javas Bigambo, another analyst, said the push for constitutional change by the ruling class “speaks to a great dimension of succession politics in 2022, adding, the two architects of the desired changes point to some “dichotomous political interests that have to chiefly satisfy the two above all else. To assume that their quest is not for the quick benefit of the duo is to be politically naïve.”

To affirm President Kenyatta and Mr Odinga’s seriousness to deliver constitutional amendments as soon as possible, Senate minority leader James Orengo said, the reorganisation of House leadership and committee’s was vital to ensure the success of the coming reforms.

“This Parliament is going to be required to play a very critical role in the next two or three months because when there is constitutional making and reforms, Parliament must be at the centre of it.

“We must, as Parliament and Senate, be together in this great quest to make Kenya a great country and assure the two leaders (Uhuru and Raila) that they have a reforming Parliament,” Mr Orengo stated during the debate on the ouster motion of former Senate deputy speaker Kithure Kindiki.

Some of the proposals expected to be subjected to a referendum include objectives and the structure of devolved governments, protected commissions and the government structure.

The final report is also expected to recommend an overhaul of the Independent Electoral and Boundaries Commission (IEBC) and the creation of the Office of Prime Minister and two deputies.

AMEND LAWS
Constitution expert Zamba Kitonga, in a previous interview, acknowledged the need to amend some  laws.
Mr Kitonga said the current structure of the three arms of government — the Executive, Legislature and the Judiciary —  needed slight adjustments to address political inclusivity, reduce the public wage bill and make the judicial system more effective.
He said that the 2010 constitution was generally  progressive but had gaps which needed to be sealed to make it ideal for Kenya.

The senior counsel said the presidential system of government is a winner take it all model that had proved unworkable in Kenya because it excludes most communities from governance.

“The draft that the committee of experts came up with was a hybrid system that was both presidential and parliamentary to accommodate opposition parties and make our politics less contentious,” he said.

The version we have, he said, was “heavily watered down” by politicians to provide for a pure presidential system which Kenyans had rejected during the long and tedious constitutional review process.

AGENTS OF CHANGE
 Mr Bigambo said that the clamour for constitutional change was dear to the President and Mr Odinga since it will have “direct benefit to them in 2022...

‘‘What is lost on us already is that other agents of change who have eternally been vanguards of political and constitutional changes in Kenya such as the civil society, community pressure groups, churches and renegade politicians, have already been misled to believe in the dangling carrot, and that is why the BBI’s final outcome is already rigged in favour of the political elite,” said Mr Bigambo.

“It must ordinarily be the people who push a government toward change, not the other way round.”