A constitutional moment now beckons; seize it

There is no constitutional crisis in Kenya. Amendment calls may be made and spearheaded by politicians but Kenyans should never lose sight of the bigger picture: This is the time to change the decade-old supreme law.

There is never a better constitutional moment in Africa than one spearheaded by an incumbent president. I stand corrected but the country has experienced three since Independence: The repeal of Section 2A of the Lancaster Constitution in 1992, the Inter-Parties Parliamentary Group formula for nomination of commissioners to the now-defunct Electoral Commission of Kenya (ECK) in 1997 and the 2010 Constitution referendum. Another, in the Building Bridges Initiative (BBI) report, beckons.

Constitutional bondage

The BBI document launched by President Uhuru Kenyatta on Wednesday is expected to cure some ills in the supreme law, including the vicious cycle of electoral violence and Executive monopoly by the winning party. Political ‘Black Holes’ and legal lacunae abound, thanks to cavities in the Constitution; a “root-canal amendment” is overdue.

Just to mention it, deputy governors have no clear role in the county government rather than to shadow and blankly deputise the governor to county functions.

Further, their assumption to office without seeking a mandate from the electorate, in case of a vacancy in the office of the governor, is crazy. Another is the issues of the general election date.

We can extricate ourselves from constitutional bondage by normalising “living constitutionalism” and midwifing changes through the BBI surrogate.

This is not a nail in the coffin of the 2010 Constitution; rather, it acknowledges our supreme law as one of the most progressive. But there is not a flawless constitution; for as long as the society changes, so does the law. It would be a problem to be static.

The Constitution envisaged and anticipated amendments with a clause that allows for a referendum to amend it. Constitutional amendment is the heartbeat of living law. Our laws are a reflection of who we are; they mirror us.

Sovereign power

And the Constitution is no exception. No work of man is perfect and Kenyans, the wielders of sovereign power, have a right to correct ancient errors and establish what is more comfortable to reason and convenience. In all these, laser focus should be on constitutionalism.

Constitutionalism, simply put, is that government organs should advance the public interest. Civil rights should reign over political rights. According to Prof H.W.O. Okoth-Ogendo, obedience to the rule of law, separation of powers and checks and balances are some of the major pillars of constitutionalism. Any callousness in amending the Constitution is unfathomable due to its supremacy.

Our Achilles’ Heel is having the thread of constitutionalism run through the fabric of the amendments. Let’s seize this constitutional moment; it seldom knocks on our door. Carpe diem!

Mr Ayuo is a legal researcher and tutor. [email protected].