This past week I was engaged in three fora regarding the Constitution and its reform. Two of those have involved discussions with and for the legal fraternity. At the heart of this debate is whether to amend the Constitution and if so what changes to make. Last week’s column spoke about measures that may be considered in the process of amending the Constitution. However, there still seems to be confusion on why to amend.
Several years ago, the late Prof Okoth Ogendo wrote a seminal article about constitutions without constitutionalism. Three years ago, I had the privilege of co-editing a book in his honour. One of the chapters in that book was written by Prof Yash Ghai who reflected on this argument by Ogendo and their writings around it with Isha Shivji. The point that he made and that Ogendo underscored in the article is that a Constitution requires life to be breathed into it.
As the country debates the various constitutional reform initiatives, it is sad that we may lose the message from Prof Ogendo about the difference between the content of a document and the way we interpret and implement that document. In the process we may focus on changing the wordings of sections that have no problem as opposed to changing our hearts and practices. There are many instances where people point to things they want changed in the Constitution. A closer look reveals that the things they complain about have nothing to do with the Constitution that Kenyans adopted in 2010.
At one of the discussions on the Constitution, a group of people spent quite a bit of time debating how the role of lawyers can be reduced. The rationale was that the challenges facing the country can be attributed to the role that lawyers continue to occupy. Reflecting on this assertion, one can assume that there are many provisions in the Constitution that focus on the legal profession and their role in society.
Amid these ongoing debates we should appreciate why constitutions are made. A constitution normally contains the fundamental rules on how a society intends to be governed. It is supposed to be a sacred document. Its utility depends on how much respect we ascribe to it. If one has a special clothe and instead of using it for special occasions one decides to use it every day, then it loses its special meaning. We have to ensure that we retain the special status of the Constitution. It is only then that it will be able to mediate the different issues that affects the society and help support progress and development.
At last week’s annual lawyers conference, the theme of the discussions was bout an audit of the Constitution. Reflecting on the debates, it is critical that we do not seek to take the country back to the pre-2010 Constitution. As some participants pointed out, the gains in the Constitution were fought for over many years, lives were even lost in the process.
Secondly, Kenyans must appreciate the progress the country has made over the last nine years under the current constitution. Any changes must seek to build on those gains and not take the country back.
Unfortunately, some of the discussions currently do not seem to appreciate the country’s history and the role of constitutional reform in that history. For such people the country made a mistake in August 2010 and the time is ripe to correct that error. If we are not careful, we risk throwing away the baby with the bath water.
This column has previously argued that there are some things in the Constitution that require a second look. However, many of the problems facing the country arise from our refusal to apply the Constitution faithfully. As we seek to change some of the provisions, we must also redouble our efforts in ensuring fidelity to the Constitution.
Without this the clamour for change will not lead to better governance since it will be as a result of misdiagnosis of the problems bedeviling the country and undertaken without real commitment to their resolution.
Kenyans of all walk must realize that the Constitution is sacrosanct. Through it we donate sovereign power to elected leaders and other institutions of democracy to govern on our behalf.