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In amending the Constitution, let's make it simple and workable

Sunday August 25 2019


Eldoret residents sign Thirdway Alliance Party's 'Punguza Mizigo' petition on October 26, 2018. PHOTO | FILE | NATION MEDIA GROUP 

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It should be obvious by now that a review of the Constitution is imminent. Let’s be careful this time so we don’t repeat the mistakes of the past. Let’s stick to amendments that will leave us a constitution that is straightforward and workable. Let’s avoid loading it with too much complexity. Let’s keep it simple.


The problem many of us avoid saying is that the Constitution we adopted in 2010 is chaotic. It is unwieldy. It is crammed with too much needless detail. Constitutions ideally are supposed to be clear and elegant. What we have is an omnibus monstrosity that is the size of a small novel. Predictably, it has created more confusion in governance than clarity. It created too many unnecessary diktats and offices, with each office operating like a law unto itself.

Devolution is without doubt the most popular and consequential aspect of our Constitution. All the more reason why we should apply it with care, otherwise we will wreck it. At our stage of development as a country, devolution should be applied in measured, gradual stages. Once we load it with heavy doses of cash and responsibilities – as most proponents wish – we will spoil everything. Just look at the mess in the healthcare sector after we hastily devolved it to the Counties.

Recently I was having an online chat with Prof David Throup, the British-born historian who has written extensively on Kenya. His main point of advice was that we avoid going the American way. He didn’t think it was good to model our Constitution on the American one. I also don’t think it was wise to copy paste whole paragraphs of the South African constitution to ours. Both these constitutions are burdensome and quite simply unsuitable for us. The South African one seeks to lock inside every imaginable right and is a recipe for failure. 



The US document, consisting of 4,543 words, is neat and concise. Yet it presents its own set of problems when we try to ape it. The doctrine of the separation of powers when taken to extremes can lead to gridlock when one branch acts like it’s in competition with the others when in reality everything should be complementary. Even after the centuries their constitution has been operational, the US has not always perfected this delicate balance. We are a much more rudimentary democracy and there are many instances we see when one or the other branches has gone rogue.

The Punguza Mizigo initiative has it attractions – and flaws. On the good side is its simplicity. Its proposal to sharply reduce parliamentary representation is laudable, but the free pass the draft Bill gives to the county governments is irresponsible. Basically its drafters wanted to please the MCAs at all costs otherwise the Bill would have been a non-starter. However, shifting the weight of governance and resources to the county wards is not in the interests of the country at this point in time. As we have all quickly learned by now, corruption is not only at the level of the national bureaucracy. It is happening lustily at the devolved level too, where structures of accountability are alarmingly much weaker.


The Building Bridges Initiative has yet to release its report, which it says it is in the process of writing after it went on a retreat. An earlier ODM presentation could give hints on which direction the BBI could take (assuming the presentation materialises in the BBI recommendations). The ODM proposal for the creation of 14 regional governments is a bad idea. We don’t need another layer of government between the counties and the national centre. It will be expensive and wasteful. BBI must not take us down that route.

In terms of cost, an expanded Executive which most political players seem to think is desirable should be matched by a commensurate shrinkage not just in elective seats but in the size of the government bureaucracy generally. The fact that most of the bloat and waste happens in the bureaucracy and in parastatals is often overlooked. A bold decision must be made to rationalise the public sector. During his first term, President Uhuru Kenyatta had come up with a superb idea to merge many of these parastatals which overlap or duplicate each other’s roles. I have no idea why the plan was shelved. It should be revived.

These days, you will be considered to be speaking heresy if you as much as mention that our original constitution was not too bad. Only that it had two very big problems. One was the over-concentration of power in the Presidency. We fixed that with the new constitution (perhaps over-fixed it). The second and related problem was too much centralisation of government. Devolution was meant to take care of this. But let’s not go too far in creating all manner of inflated commissions, or letting institutions like the Judiciary operate in a totally unaccountable way.