Push and pull over calls to change laws

President Mwai Kibaki promulgates the Constitution of Kenya at Uhuru Park, Nairobi, on August 27, 2010. PHOTO | TONY KARUMBA | AFP

What you need to know:

  • Catholic church bishops led by Cardinal John Njue last week called for changes to the Constitution to help heal the country.
  • Mr Mudavadi supported calls for constitutional changes to provide for a parliamentary system in order to ensure inclusivity.
  • Lawyer Nzamba Kitonga says the task to review the Constitution should not be left to the politicians.

The political class is headed for a major showdown over a new push to review the 2010 Constitution pitting key Jubilee and opposition leaders against a camp allied to Deputy President William Ruto.

Mr Ruto shot the first salvo last weekend when he dismissed talk of amending the constitution as misplaced and intended to accommodate a few individuals.

The DP, who was addressing a gathering at the homecoming of Education Cabinet Secretary Amina Mohamed in Kakamega, asked Kenyans to instead focus on development issues.

Mr Ruto’s remarks appeared to target area Governor Wycliffe Oparanya and his Machakos counterpart Alfred Mutua who had called for a change of the constitution to ensure inclusivity in the running of the country’s affairs.

Addressing the public at Khayega market in Shinyalu, Kakamega County, two days earlier, Dr Mutua said there was need to amend the constitution to create more political positions.

“One shouldn’t die politically just because he failed to clinch a seat he or she vied for, they should also be integrated somewhere else to serve the people,” Dr Mutua said.

Mr Oparanya on the other hand called for amendments to the constitution to create the Prime Minister’s post to ensure all the tribes are represented.

“We want the broadening of the executive to ensure that every tribe feels represented, the presidency shouldn’t be for two tribes,” Mr Oparanya said.

In what appears to be a repeat of the 2010 referendum contest between the “Yes” and “No” camps, the latest push has sharply divided the political class with Mr Ruto and his allies facing off with a growing list of pro-constitutional change campaigners.

Then, Mr Ruto and former President Daniel Moi stood up to a strong “Yes’ campaign team led by retired President Mwai Kibaki, former Prime Minister Raila Odinga, then-Vice President Kalonzo Musyoka and deputy Prime Ministers Musalia Mudavadi and Uhuru Kenyatta, which eventually carried the day.

On Thursday, Mr Ezekiel Njeru Namu petitioned the National Assembly through Speaker Justin Muturi seeking amendment of various sections of the Constitution.

When Speaker Muturi received Mr Namu’s petition he said the matter is weighty and needs careful deliberation.


Speaker Muturi directed the Justice and Legal Affairs Committee chaired by Baringo North MP William Cheptumo to look into the petition and table a report in the House within 60 days.

“The Committee should undertake to engage the petitioner and may thereafter introduce necessary bills for consideration by this House, in respect to the prayers sought by the petitioner and should undertake to engage the petitioner,” Mr Muturi said.

“You will agree with me the prayers sought by the petitioner require thoughtful consideration as they propose to fundamentally alter the architecture of our Constitution,” Mr Muturi argued.

Catholic church bishops led by Cardinal John Njue last week called for changes to the Constitution to help heal the country.

Yesterday, Mr Mudavadi supported calls for constitutional changes to provide for a parliamentary system in order to ensure inclusivity.

He maintained that the Bomas draft that was “cannibalised” by Parliament during the Naivasha retreat in 2010 should be adopted by the country. 

“The structure we had under the Grand Coalition government was purely presidential and not parliamentary,” Mr Mudavadi said.

He described the current presidential system as ‘mongrel’, saying it had eclipsed other governance structures and centralised leadership at the executive headed by the president.

His views were echoed by Mr Odinga’s allies, an indication that the opposition, hitherto divided over the newfound Kenyatta-Odinga handshake, was closing ranks on the push for a constitution review.

MPs Samuel Atandi (Alego), Anthony Oluoch (Mathare), Caleb Amisi (Saboti), Florence Mutua (Busia Woman Representative), Godfrey Osotsi (Nominated), and ODM Secretary General Edwin Sifuna claimed the Constitution has 20 per cent errors and needs to be amended.

“We all agree that there is need for constitutional change to fix the 20 per cent that is defective in the 2010 Constitution. We want to tell the DP that this will happen whether he likes it or not,” Mr Sifuna said, referring to Mr Ruto’s opposition to the push.

ODM chairman John Mbadi asked the team tasked with implementing the handshake between Mr Kenyatta and Mr Odinga to also re-look at the entire Constitution based on the famous March 9 deal, and propose changes.

“We have two assignments right now: Fixing the IEBC, and looking at the 20 per cent of the Constitution which we said we will look at, and now is the time,” Mr Mbadi said.

“We have the option of forming an interim commission to oversee a referendum, or we have the team looking at the deal signed by Uhuru and Raila to look at the whole Constitution, including fixing the IEBC, electoral reforms and the governance structure, and then we subject it to a referendum.”

Last week, the Global Peace Foundation asked the National Assembly’s National Cohesion and Equal Opportunities to push for the constitutional amendments to reduce the two five years presidential term to a one seven year term.

The foundation observed this was the only way to cure the tension that comes during the election cycle.

But speaking in Nyandarua on Wednesday evening, Jubilee secretary-general Raphael Tuju, in reading from the same script as Mr Ruto, said that time is not ripe for Kenya to discuss a referendum to change the Constitution just a few months after the election.

“The Jubilee Party will not condone worthless debate about creation of positions for a few individuals. We are now focused on development,” Mr Tuju said.

It was the same position taken by Jubilee parliamentary leaders Aden Duale (National Assembly) and his Senate counterpart Kipchumba Murkomen, both key Ruto allies, who while insisting that the IEBC needed to be reformed, rubbished talks about a referendum to look at the other aspects of the Constitution.

The resignations of IEBC commissioners Connie Nkatha, Paul Kurgat, and Margaret Mwachanya — leaving only its chairman Wafula Chebukati, and commissioners Abdi Guliye and Boya Molu — has sparked debate on the need for constitutional reforms.

“The debate on electoral justice (after the fixing of the IEBC) should include a discussion on the structure of the Executive.

"Its present design is incompatible with the creation of a nation based on inclusivity, protection of the well-being of communities and the nation, social justice and shared prosperity,” Senate Minority Leader James Orengo said in a statement on Wednesday.

Former Constitution Review of Kenya Chairman Yash Pal Ghai, however, warned politicians against viewing the process through a very narrow lens, warning it could turn disastrous.


He however said it was time the 2010 constitution was reviewed.

“I do have strong views on that subject. It depends on the approach to the review.

"I think the politicians have a very narrow objective. They are concerned about the idea to the amendment to the presidency so that we move to the parliamentary system as a way of sharing power.

"In itself this is not very effective and therefore I would not be very much in favour of that.”

“Personally I would support the idea of a parliamentary system and that is what we voted for in Bomas and it was also recommended by Kofi Annan and the eminent African leaders who came after the 2007 violence,” he added.

Lawyer Nzamba Kitonga who chaired the Committee of Experts that midwifed the 2010 constitution, says the debate about amending the Constitution is welcome but should be holistic and not just be confined to wresting some power from the presidency to a yet-to-be known body in the Executive.

He also says the task to review the Constitution should not be left to the politicians but that there should be an inclusive approach.

“Kenyans should remember that when we finished our work we had said that an assessment on whether the Constitution sits well with the country should be done between seven and 10 years after the promulgation.

"In that period we should have been able to tell what has worked, what hasn’t worked and what needs to be rectified. So, the current debate fits within the timeframe we had given.”

Reporting by Samwel Owino, Walter Menya, Patrick Langat, Derick Luvega and Waikwa Maina