The Constitution is the bedrock of any state and it reigns supreme over any other law and policy.
Its promulgation in 2010 was indeed a milestone. It marked the rebirth of Kenya, following a 25-year gestation period of struggle that gave birth to the now four-year-old constitutional democracy.
This momentous decree came as a great beacon light of hope to millions of poor Kenyans, who overwhelmingly affirmed the overhauling of the old constitutional order.
However, political bickering among other factors has interfered with the legislative process of reconstructing strong pillars upon which to anchor the Constitution.
Consequently, its implementation which was hailed as one of most progressive is mired in unresolved complex legal questions, including a controversial call for a referendum to amend it.
The referendum call has sparked a public furore across the political divide. The protagonists in the opposition are stubbornly in favour of the referendum as a counter to the tyranny of the majority.
However, such a premature call may be a manifestation of our failure as a country to have rigorously scrutinised the draft constitution prior to its promulgation.
In hindsight, such scrutiny would have pre-empted the immediate need for amendment. Since the five-year legislative agenda of institutionalising the Constitution has not been met, such an amendment is likely to be more disruptive.
The US Constitution is the hallmark of constitutional democracy. It is the oldest and shortest in the world with 4,440 words and it has been amended only 27 times in over 200 years.
Notably, the US Constitution outlines general principles of empowering and limiting government with few details. These principles have endured the test of time with adequate elasticity to accommodate concerns of each generation of Americans.
The distinguishing feature of our Constitution is that it is rule-based, relative to the discretionary-based US law. Our constitution is a manifestation of the political elite’s mistrust of previous institutions of governance.
The framers of the Constitution naively viewed it as a panacea of all our previous governance issues. This local view, which was internationally supported, was the root cause of the high level of specificity.
As an authoritative source of all state powers, the Constitution is more general and powerful, thus changing it can cause greater disruption.
This is evidenced by the ongoing legal disorientation in some key areas like devolution that have been uncovered by the implementation process.
To minimise disruption of the stability of legal systems, the Constitution should be sparingly amended if need be, and for good reasons.
The constitutional implementation process has given birth to some weighty legal issues that would probably form a legitimate basis for a referendum.
But such a call must not be driven by political expediency or the need to settle political scores. Rather, it must be judiciously well thought out and forwarding looking.
Ideally, we should turn to legislative action to address specific current issues like the ones that have been called for. The constitutional amendment, on the other hand, must be reserved for general, intertemporal and futuristic issues.
Such view would abstain us from binding our future with unnecessary details, but rather give them adequate description to interpret the Constitution based on their times, not ours.
Prof Kieyah is a principal policy analyst at KIPPRA. The views expressed in this article are author’s alone.
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