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Fix lapses in supreme law implementation

Sunday July 21 2019

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The question of holding a referendum to change the 2010 Constitution has been a subject of legal and political discourse for quite a while.

This week, the discussion took a new dimension when the Independent Electoral and Boundaries Commission declared that the Thirdway Alliance had garnered the requisite number of signatures to force a referendum.

Concomitant to this, there have been presentations to the Building Bridges Initiative proposing a referendum to change various sections of the Constitution ostensibly to improve governance, eliminate acrimonious electoral politics that leads to cyclic violence and societal disintegration.

An outcome of the handshake between President Uhuru Kenyatta and Opposition Leader Raila Odinga, the Building Bridges Initiative is going round collecting and collating views from the public on what should be done to stabilise national politics and end serial violence after elections.


So far, it is the Thirdway Alliance’s initiative that has concretised issues and provided cogent formulation towards constitutional review.


Precisely, the Thirdway Alliance, under the brand of Punguza Mizigo, has isolated 16 areas it wants changed or fixed through the referendum. Among these are changing the presidential tenure from the current two terms of five years to single-term of seven years. Similarly, it wants to reduce representation in Parliament and the County Assemblies with the cumulative goal of shrinking governance costs. Also, it wants increased financial allocation to the counties from the current minimum of 15 per cent of the audited national revenues, to 35 per cent, a subject that has dominated all debates on constitutional change.

In all these, it is pertinent to critically examine the rationale for proposals to change the Constitution. When it was enacted almost nine years ago, the current Constitution was hailed as progressive, comprehensive and trend-setting.


It expanded the democratic space, entrenched bill of rights, dispersed power from the centre to the grassroots and various other institutions and committed public officials to high moral standards. Undergirding this was the desire to end bad governance, abuse of public office and plunder of national resources.

Notwithstanding its high points, questions have emerged on its glaring loopholes, which include over-representation and the high cost of running government, inadequate allocation of resources to counties, duplication of roles and continued inequalities.

Missing in this conversation, however, is the fact that what may appear to be weak points are a consequence of administrative lapses and infidelity to the rule of law. Several provisions of the Constitution have not been implemented due to political brinkmanship. Worse, some have blatantly been ignored. Thus, the problem may be inability or unwillingness to give force to it.