Yash Ghai on Amending the Constitution or Amending Politicians? (The Star)

"Amending the Constitution or Amending Politicians?"
Yash Pal Ghai
The Star
27 Jan 2018

Until recently, a favourite occupation of politicians (in the wake of disputed elections) was to agitate for amending the 2010 Constitution...

     Because it is clear that few politicians have read the Constitution (but all are ready to blame it), I was very pleased to see the headline of Governor Kivutha Kibwana’s article: “Why in spite of new laws (meaning Constitution), we’re aggrieved”. I thought he would blame the politicians for our predicament — but not so. I missed, at first, the subtitle in small print over the heading: The 2010 Constitution has not cured all of the ills, let’s renegotiate it. He tries to demonstrate by 10 deficiencies in the Constitution, some of which I discuss now.

1. ‘Electoral justice must be realised in all its manifestations” ...
2. “The governance system requires restructuring”— referring principally­ to the replacement of the parliamentary system which the politicians threw out, replacing it with the executive presidency...
3. “Independence of the independent commissions must be buttressed….to curb the over-concentration of executive power”...
4. “Strengthening party coalition – building mechanisms through political party reforms is critical”...
5. “A dialogue that addresses the scourge of negative ethnicity to pave way for the flourishing of the Kenya nation is key”... “We must decisively deal with corrosive corruption.”...

AND SO?

     It is of interest to note that all discussions among the politicians on constitutional amendments focus on power sharing between politicians (of key political parties), and how they can increase the grease to themselves. Kibwana does mention as one goal, to attain “true economic justice for all” but conceives of it in terms of “equitable sharing of the national government component of budget”. Nothing about the broader issues of social policies that are necessary to ensure minimum well being of all Kenyans—not something that interests politicians.

     Every “change” that he advocates is clearly and extensively provided in the Constitution. It is time that he acknowledges that the “constitutional” problems he and other politicians are listing is really a device to hide the abominable conduct of politicians who regularly transgress and violate the Constitution and other laws—and to confer even greater authority upon politicians. ...

     This attitude of tribal-oriented politicians towards a united nation Kenya is hardly a qualification to amend the Constitution. In fact their dominance of the process is little short of disaster. ... On the other hand, the civil society driven processes were more broadly oriented, fighting for democracy, social justice and human rights...

     I do not believe the Constitution is perfect — far from it — thanks to the intervention of politicians with the Bomas draft after 2008. I consider that time has come for a review of its working. However, I would not trust politicians to undertake this task, as their own interests are deeply involved. Leave it to the people, who after all are sovereign.  Click here to read the full article.