We do need an audit of the Constitution but this is hardly the way to go about it

What you need to know:

  • The intention by the drafters of Article 257 was never to provide a tool for political posturing. This is what Okoa Kenya has achieved so far.
  • The point is that elected representatives do not always act in the best interests of the electorate. But the Constitution gives the people a fall-back position at Article 257. It’s a tool intended for use against the Establishment!
  • The bottom line is that the determination of the amounts to be allocated to counties and among counties is a professional undertaking that requires very demanding and specific core competences that our governors do not possess.

The Okoa Kenya initiative is unconstitutional for simple reasons. Article 1(2) of our Constitution states: “The people may exercise their sovereign power either directly or through their democratically elected representatives.”

But Article 1 (1) demands that sovereign power by the people “shall be exercised only in accordance with this Constitution.” Thus the Constitution provides at Article 256 how the people shall amend their Constitution through their democratically elected representatives and at Article 257, how the people shall amend the Constitution directly.

The Constitution does not provide that the people exercise their sovereign power via both pathways simultaneously. The exercise of their sovereign power is constrained by the Constitution expressly providing clear options, either directly, or through democratically elected representatives.

The Constitution does not contemplate the use of both paths concurrently precisely because it would defeat the true purpose and logic of these constitutional options.

Amendment by popular initiative at Article 257 is intended to counter and ultimately overcome shortcomings, self-serving and dictatorial acts of commission and or omission by elected representatives. The article is a tool for the people to take back control from their elected representatives if that ever becomes necessary.

The import is that serving representatives and the political parties that sponsored them to Parliament cannot posit as sponsors or promoters of a popular initiative. That is unconstitutional and abuse of process.

The intention by the drafters of Article 257 was never to provide a tool for political posturing. This is what Okoa Kenya has achieved so far.

Nor was Article 257 intended to disrupt the five-year cycle of general elections, which appears to be the ultimate objective of the “noise”.

I know the true intention of Article 257 because I crafted it. The provision for a popular initiative to amend the Constitution was not in the initial Constitution of Kenya Review Commission’s draft.

I introduced it at Bomas where I was a district delegate and also served as the convenor of the technical committee that discussed and processed the chapter on constitutional amendments. The thinking came from my earlier work published in February 2000.

At that time, MPs wanted the final constitutional draft to be approved by Parliament. Mr Raila Odinga was their Select Committee chairman then. But most of us wanted the final draft approved by the people. The people eventually won.

ELECTED REPRESENTATIVES

The point is that elected representatives do not always act in the best interests of the electorate. But the Constitution gives the people a fall-back position at Article 257. It’s a tool intended for use against the Establishment!

It stands to logic, therefore, that the sponsors and promoters of a popular initiative under Article 257 cannot be persons or outfits fronting political parties and coalitions or their elected representatives. Their option under the law is to work through Article 256. Period!

Incidentally, it was also our express and deliberate intention at Bomas that anyone who runs for the highest office and loses, should seek to serve the country outside politics.

That is why we barred presidential candidates from contesting any other position at the same time. We wanted them to weigh their options carefully, and if they lost, to go home!

The Pesa Mashinani initiative by governors is also unconstitutional for very different reasons. Those promoting this initiative have, in effect, illegally usurped the functions of the Commission for Revenue Allocation as set out at Article 216. Incredibly, even the commission itself is constrained on how to go about its work.

It is actually baffling that Mr Micah Cheserem and his team are sitting by watching a band of politicians take over their constitutional mandate without a fight! We should expect the Commission for Revenue Allocation to protect their constitutional mandate, in court if necessary.

The bottom line is that the determination of the amounts to be allocated to counties and among counties is a professional undertaking that requires very demanding and specific core competences that our governors do not possess.

The figure of a minimum 15 per cent for counties is good enough and in no way stops counties receiving much more even beyond the 45 per cent arbitrary benchmark being set.

Mr Ngugi is a consultant in public affairs and policy. ([email protected])

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