WHY WE NEED TO SOBERLY DEBATE THE CONSTITUTION OF KENYA (AMENDMENT) BILL, 2020

BY JAYMO WA THIKA

INTRODUCTION:

Whenever one gets into a covenant, especially a lifetime formal agreement, it is always prudent to understand what they are really getting themselves into. This can never be well achieved if we attempt to think it through using our hearts (emotions) rather than our brains (intellect). Critical thinkers have faith in the power of logic and sound reasoning as opposed to emotional reaction to challenges.

The introduction of the Constitution of Kenya (Amendment) Bill, 2020 popularly referred to as the Building Bridges Initiative (BBI) to the 47 county assemblies for debate marks a milestone into our future and how we, as well as future generations, shall be governed. We are staring at a constitutional contract that will bind us for quite some years before Kenyans decide to improve our constitution further.

ARTICLES 2 and 3 of our Constitution gives supremacy of the laws of Kenya to the Constitution and its validity or legality CANNOT BE subject to challenge by or before any court or other State organ.

ARTICLE 4 states that Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

What does that mean?

Any law that is included into the Constitution of Kenya is FINAL and CANNOT BE challenged in any court until an amendment to the Constitution is done through a referendum or by any other way that is stipulated in this constitution. This means that we shall all be bound by the laws that will included in the Constitution once the BBI amendments come into place. No one, including the president, will be in a position to change, add or subtract any part of the Constitution without the mandate of the people of Kenya.

As we stand today, the President, Members of Parliament or Members of County Assemblies can amend or change the laws that govern us in their roles as the Executive and Legislative Arms of Government to suit their selfish interests or maybe punish a certain groups of people or settle political scores. BUT THEY CANNOT AMEND THE CONSTITUTION WITHOUT COMING BACK TO MWANANCHI FOR APPROVAL. That is the same reason they are coming to us for approval or rejection of the BBI.

When you see various people insisting that their views or interests be included in the BBI amendments, they are simply fighting to have them protected by the supreme law of the land where no leader can manipulate them whether they like them or not.

Amendment of Article 82 of the Constitution.

If we go back to history a bit, the selfish interests by those in government (Parliament and Executive) who refused to come up with a formula to achieve the ⅔ Gender Rule, have brought about a 3-year stalemate over the matter. That is why women have insisted that the laws governing the ⅔ Gender Rule be inscribed into the constitution.

Amendment of Article 89 of the Constitution

The same applies to the “One–Man–One–Vote–One–Shilling” Agenda being fronted by communities who feel that they have been disadvantaged for years when it came to representation and resource allocation. As we all know, there has been a 3-year stalemate over the matter, something that has brought counties into their knees as Treasury could not advance the requisite budgets to counties due to the stalemate in The Senate.

Eventually, it turned out impossible to deduct money from counties that have been unfairly favoured with this distribution because the distribution formula had been anchored in the Constitution. That is exactly what the communities living in the Mt. Kenya Region currently want included in the constitution because they very well know that, no matter who is president, no one can take that money (or representation) away from them once it is included in the constitution.

The Insertion of new Article 11A in the Constitution

When you see people insisting that their economic occupation (eg coffee, tea, dairy, fishing, livestock farming etc) be included in the constitutional amendments. They know quite well that once anchored in the constitution, no one can amend it to their disadvantage as happened in the early 80s and 90s where the then regime virtually killed those particular sectors in order to “punish” a particular group of people who did not subscribe to their ideologies.

Amendment of Article 203 of the Constitution

Constitution making is a contest over distribution, redistribution and limitation of power. When the proponents of the BBI insist on channeling 35% of the national budget to counties as opposed to the current 15%, they are fighting to “actualise” devolution by monetising devolved functions.

As we stand today, quite a good chunk of funds meant for devolved functions is controlled by the National Government through Ministries, thus crippling county governments’ ability to effectively offer services to their people. This leaves governors at the mercy of the National Government as Mwanachi lynches them over lack of services. Governors are literally reduced to begging Cabinet Secretaries to execute functions that constitutionally should be the mandate of counties. That is what is being corrected through BBI by constitutionally protecting devolved funds from the political manipulation by the National Government.

Amendment of Article 80 of the Constitution

This amendment lays the framework to deal with integrity issues through effective and expeditious investigation, prosecution and trial of cases relating to corruption.

CONCLUSION

A liberal democracy is the main method through which sustainable peace can prosper. Past deficiencies and injustices help to create new solutions to the challenges faced by a society. The Constitution is never cast in stone and should always effectively serve the interests of the time and of the future.

The ability to divorce politics from constitutional making will be key to coming up with a document that will serve this generation and generations to come. The future of this country lays barely in our hands and history will either judge us fairly or harshly depending on the decision we make today.