Experts support push to amend Constitution

Monday July 16 2018

Nzamba Kitonga

Constitutional lawyer Nzamba Kitonga says time is ripe for review of the 2010 Constitution to address what he termed as matters arising, which had been identified during the eight years of implementing the document. PHOTO | FILE | NATION MEDIA GROUP 

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The fresh clamour for the review of the Constitution being pushed by opposition leader Raila Odinga is gaining momentum after Constitutional experts concurred on the need to correct certain fundamental gaps.

Renowned constitutional lawyer Nzamba Kitonga said time is ripe for review of the 2010 Constitution to address what he termed as matters arising, which had been identified during the eight years of implementing the document.

Mr Kitonga, the former chairman of the defunct Committee of Experts which drafted the Constitution, said large sections of the country feel excluded from governance of the country, and therefore a review is appropriate to address such gaps.


“As the committee of experts, we envisaged that a review of the Constitution will be done after a period of seven to 10 years, when the challenges of the new laws are experienced and identified by Kenyans,” the senior counsel said.

During an interview with Nation, Mr Kitonga said the current structure of the three arms of government — the executive, legislature and Judiciary — needs slight adjustments to address political inclusivity and negative ethnicity, reduce public wage bill and make the judicial system more effective.

He said the Constitution was generally good and progressive, but it had certain small gaps which needed to be improved to make it ideal for Kenya.


He said the presidential system of government adopted in Naivasha during the final phase of review process is a winner take it all model that has proved unworkable in Kenya because it excludes most communities in governance.

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

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

“We had provided for a full pledged constitutional office for the leader of official opposition sitting in Parliament, which was removed, making a large sections of Kenyans to feel excluded from governance when they lose elections,” he said. On Judiciary, Mr Kitonga argued that the Judicial Service Commission should be composed of retired judges and senior lawyers as opposed to the current situation where recruitment and discipline of judicial staff is handled by serving judges and magistrates.


“Ours is not an ideal model, it breeds suspicion and unfairness because a judge cannot get fair trial in a tribunal that consists of people  with vested interests,” he said.

Another legal expert, Mr Bobby Mkangi, who served with Mr Kitonga in the review panel, said the committee never anticipated that both levels of governments and their respective assemblies would be wasteful in mismanaging public resources. Mr Mkangi said the whole system of government is complex and expensive and therefore should be reviewed to eliminate duplication of public service roles in counties and national government, make it more effective and less bureaucratic.

“The country now has a reduced Cabinet where the Constitution provides a minimum of 12 and a maximum of 24 Cabinet secretaries as opposed to the previous 80 plus ministers and their assistants but our county and national assemblies are still bloated” he said.


He said they never envisaged that the Independent Elections and Boundaries Commission will create a huge number of constituencies and wards, saying that can be addressed by amending the Elections Act.

There have been concerns over the two sizes of parliament and the cost of running the devolved units with some politicians calling for scrapping of the senate and reduction of counties.

In 2014, Parliament recently rejected a motion by former Mwingi central MP Joe Mutambu seeking to reduce the number of counties from the current 47 to 10, citing costs of running the devolved units.

Uasin Gishu County MP Gladys Boss Shollei has drafted a Constitutional Amendment Bill seeking to scrap the Woman Representative seat and increase the number of women to Parliament through election — not party nomination.


The bill, which was tabled in Parliament last week, proposes the pairing of constituencies to form one constituency that will be reserved solely for women. The existing constituencies will be vied for by both genders.

On the other hand, Mr Odinga has revived the push for review of the constitution to change the structure of the country’s system of government.

Mr Odinga argues that after eight years of governance under the 2010 constitution, it is time to review the document and correct the gaps that have been identified so far.

The former prime minister says the review will address issues bedeviling the country because Kenya has not followed the governance route and equitable development envisaged in the national anthem.

Mr Odinga is rooting for constitutional amendments to see through the nine-point agenda he agreed with President Uhuru Kenyatta four months ago, with proposals to restructure the Executive and introduce a three-tier system of governance.


To achieve the envisaged changes, the ODM leader said, a series of public events will be organised across the country to outline the terms of the March 9 meeting, commonly referred to as The Handshake, to Kenyans.

“If you look at our national anthem, it says Justice be our shield and defender, may we dwell in unity, peace and liberty and that plenty be found within our borders, but Kenya took a different route” he said in Kitui on Tuesday.

Mr Odinga told guests on Tuesday during the launch of Kitui Villa, a hotel owned by one of his foremost advisers, US based law scholar Prof Makau Mutua that a Kenya free of tribalism, corruption, election rigging, poverty and insecurity is the Canaan Nasa leadership promised their supporters.


He said he agreed to talks with President Kenyatta that culminated into the famous handshake after reaching consensus on the need to address social, political and economic reforms through a constitutional review.

“The issues that need constitutional amendments had been identified in the nine point Memorandum of Understanding he entered with President Kenyatta but Kenyans will have a chance to give views on how the process will be conducted” he said.

The ODM party leader who spoke at length on the broad agenda of his political cooperation with the President said the taskforce mandated to work on modalities of actualizing the deal will soon start collecting views from the public on how they want the country governed.

Without giving specific timelines, Mr Odinga said the fresh public debate on constitutional review exercise will culminate in a referendum to change the 2010 constitution.


“We have agreed with President Kenyatta that if we manage to accomplish correcting these constitutional gaps, we’ll have transformed Kenya into a better country for future generations” he said.

He said they had already appointed the taskforce that will go round the country collecting public views in all counties on how to improve the structure of government, electoral reforms and how to deal with negative ethnicity.

“You’ll be asked how you want to be governed and how we can improve devolution and distribute wealth in this country. You’ll also give views whether you want the executive structure the way it is or we adopt parliamentary system of government or hybrid” he said.

Mr Odinga emphatically said the constitutional review agenda was agreed upon with Mr Kenyatta in the MoU they signed and read to the country after shaking hands on the footsteps of Harambee House on March 9th.

“We have a good Constitution, but it is not working. That is why President Kenyatta and I decided to come together for the sake of changing what needs to be changed through laws review,” he said.


However, President Kenyatta has since opposed the push to change the constitution saying he has no time running around the country asking people to support changing the Constitution.

“It won’t solve the problems we have. But engaging with the private sector on manufacturing like we are doing will,” President Kenyatta said at State House, Nairobi last month, when he hosted the 8th Presidential Round Table Forum between the government and the Kenya Private Sector Alliance.

Several other leaders, including Mr Odinga's opposition allies Kalonzo Musyoka and Musalia Mudavadi, have supported calls to amend the Constitution to strengthen devolution and make it more people-centred.

But other powerful leaders, among them DP Ruto and the Council of Governors Chairman Josphat Nanok, have also rejected Mr Odinga's call to review the devolution structure.