Alberto Leny
The Ekuru Aukot-led Thirdway Alliance’s push for a referendum through its Punguza Mizigo initiative has re-opened a debate on the review of the Constitution.
A referendum now seems inevitable and time is ripe for the amendment of the 2010 Constitution, based on lessons learned from nearly a decade of its existence.
The Punguza Mizigo Bill has sprinted ahead of the report by Building Bridges Initiative (BBI) taskforce, formed following the truce between President Uhuru Kenyatta and former Prime Minister Raila Odinga on March 2018. Both initiatives raise serious constitutional issues about the structure and timing of the proposed referendum(s).
Should the Punguza Mizigo sail through the County Assemblies, where it enjoys massive support, could it legally upstage the BBI and trigger a referendum?
If so, will another referendum be held if the BBI team proposes so in its final report? There is also the faith-based Dialogue Reference Group with its own proposals for constitutional amendments. Clearly, we are walking through a legal minefield as the changes loom. Conducting a referendum is a costly affair.
It’s worth noting that the Constitution has various gaps that need to be addressed to align it with its two cardinal pillars of decentralisation of power and distribution of public resources. These issues continue to be amplified in the national political sphere, underpinning the doctrine of separation of powers and its centrality to constitutional dispensation.
Current conflicts pitting the three arms of government against each other have demonstrated the need to institute fundamental changes to ensure office holders to abide by the letter and spirit of the Constitution.
The standoff over the division of revenue between the two levels of government does not augur well for delivery of services to Kenyans. Reports of stalled projects in the counties and unpaid salaries as leaders tussle are unfortunate.
Yet, the most glaring constitutional dysfunction that requires a thorough review ahead of the proposed referendum is the supremacy battle between the National Assembly and the Senate. After observing the quality of debate in both houses, perhaps it would be prudent to grant the Senate an enhanced status.
The National Assembly has been enforcing legislation that have watered down certain aspects of the Constitution, particularly those that relate to leadership and integrity and those checking MPs excesses.
Many MPs have abandoned their representative roles and have instead become more like “masters of the people”. The MPs recall clause in the Constitution needs to be strengthened to tame the legislators, who have been preoccupied with granting themselves special rights.
But even as the clamour for a referendum gathers steam, the parallel initiatives need to be channelled into one forum that will involve all Kenyans in charting their destiny. The people have an inalienable right to determine the form of governance of their choice.
Certain segments of the Constitution require an overhaul so that it can fulfil its core element of recognising the aspirations of all Kenyans. —[email protected]
