alexa If the answer is a referendum, what is the question? - Daily Nation

If the answer is a referendum, what is the question?

Wednesday February 27 2019

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The British Institute in Eastern Africa (BIEA) held a lecture on the Constitution of Kenya, 2010, as part of their flagship annual lecture series.

The lecture, titled ''Eight years after a colourful Constitution promulgation: Is it time for a referendum?'' was given by Prof Yash Pal Ghai, an international legal expert with a wide experience on constitutional matters. He was the chairperson of the Constitution of Kenya Review Commission (CKRC) for four years, ending 2004.

Prof Ghai has a deceptively friable demeanour. He looks delicate and gentle and is very soft spoken. But he is an intellectual rouble rouser, with very clear ideas on what the Constitution was meant to achieve for the Kenyan people. He admitted that eight years is a very short time in constitutional implementation, even for nations who keep on track. He therefore pointed out that the talks of a referendum are premature. It is not until Kenya implements the Constitution in its entirety or to the nearest law applicable, can the nation be in a position to measure the degree of failure or success of the 2010 Constitution.

But what held my interest were the nuances in his talk of what ails this country, which was the reason Kenya engaged in many years of confrontational, and even bloody, constitutional making. It is for those reasons, which i will highlight below, that Kenyans need to keep in mind the need to succeed in implementing the constitution to its optimum.


One, the old Constitution was authoritarian with power vested in the presidency. As a result, all the arms of government, the legislature, executive and judiciary looked like one big pot of Githeri. They were characterised by lack of distinctive boundaries, no separation of powers and one person seemed to act for all the three.

Currently, the question begs - Is Kenya operating in an environment where the distinction between the three is as clear as day and night? If the answer is a ''no'', then Kenya has failed to implement the Constitution.

Two, there is a distinctive difference between a constitutional review and a referendum. The latter is a methodology of voting in which a question is brought before voters to make a decision. So politicians are now talking about a referendum. But what is the question? Shouldn’t Kenyans be discussing the question on which we are being asked to make a decision? We cannot walk around saying we shall have a mlolongo (queue), but that is what we have been reduced to.

Three, the one thing that everyone seems to agree is that the bill of rights in the Constitution was a powerful tool for social, economic and cultural inclusion. The irony is that while these rights include, but are not limited to access to health, food, water, social security and education, we have heroic fathers 'stealing' their own children from hospitals, as they cannot raise the money for primary health care. The loans owed by poor Kenyans to the Higher Education Loans Board, is being handled so inhumanely, we might as well be putting a death sentence, on higher education for youths from poor backgrounds. Unfortunately that is about 45 percent of our population.

The lecture had a panel of three discussants: Ms Anne Okutoyi from the Kenya National Commission on Human Rights (KNCHR), Prof Edward Kisiang’ani, from Kenyatta University and Dr. Freda Nkirote from the IBEA, who also hosted the event. It was pointed out that the cardinal rule of the constitution was to give power back to the people, through representation and participation.


At the time of constitutional-making, Wanjiku was in every debate and discussion. But how many times do we hear politicians talk of the people today?

The issue of inclusivity, which is people-centred also took centre stage. It was pointed out that that Central Kenya has produced three presidents, but it has just as many poor people as any other place in the country. Recently we read of sixty children dying in the ICU in Kiambu Level Five hospital, literally at the backyard of the current presidency. Yet Kenyans continue to live in the delusion of 'our own' instead of the more difficult, more intellectual, but clearly more fruitful route of constitutionalism.

Naturally the elephant that even poachers have been unable to slay came up. Corruption and rampant theft of public resources and the reluctance of Kenyans as individuals and as institutions to put a stop to it. Apparently the money lost to corruption is cumulatively much more than what is used to run government.

Ways in which the Constitution has worked and improved the lives of Kenyans were also pointed out. But it makes no sense to dwell on what works, when the opportunity to mend what does not work still exists!

Twitter: @muthonithangwa