Debate merits of holding referendum

Discussions on the necessity for a referendum to amend the 2010 Constitution have gained momentum over the last two weeks. There seems to be growing consensus amongst the political class that it is necessary to review the Constitution and fix some parts that were either unrealistic at the time of adoption or have proved unworkable eight years later.

Unfortunately, there are arguments that the main problem with the Constitution is the huge cost of representation. Consequently, the solution is to amend it and reduce the number of representatives.

This school of thought proceeds to place the cause of the current economic challenges facing the country to implementation and believes that amending the Constitution will be the magic wand to those economic problems. This argument is both simplistic and false.

While there may be some economic savings from constitutional reforms, our discussions should focus on governance. We have to determine whether changing the Constitution will improve our governance and politics or whether it will make it worse. The economic argument, while nice sounding is a red herring.

From a governance perspective, there are several issues to debate. First, whose interest are we seeking to serve. Politicians are at the forefront with arguments and proposals and counter-proposals. The greatest danger this country can do is to surrender citizens’ sovereignty to the political class.

Article One of the Constitution clearly captures the sovereign power of “We The People.” It was one of the driving justifications for the new Constitution. It came after a long struggle. If the referendum is to be about the politicians, then it is not necessary. Kenyans must be at the forefront of debating the merits of amending the Constitution and in charge of the process by which any areas for consideration are identified and consensus on them generated. Unless this happens, the political class will set questions that only serve their interest and clothe it under the guise of addressing economic challenges facing the country.

The fundamental question must be how has the Constitution affected Kenyans. Is it for the better or the worse? As a Kenyan I am convinced Kenya’s constitution still remains transformative. Any amendments to it must therefore refine and improve on its character and not take a retrogressive step.

It is essential to identify some of the transformative characters of the Constitution. First is its protection of fundamental rights especially those of the weak and marginalized. Whatever changes we envision should not make it less protective of citizens rights. It is for that reason that we have to retain the spirit of expanded representative space for women and youth. Should we decide to reduce the numbers of elective seats, the same should not be done without ensuring that we retain the drive towards equity in gender representation.

We cannot go back to the pre-2010 Constitution when women were around 10 per cent of the Members of Parliament. Changes that should be considered are how to better protect human rights. Tow areas come to mind.

First is the role of security agencies and their performance in protecting liberties of human beings. There are still challenges in how the police deal with public order management. Despite the promise of security sector reforms, the desired ideals are yet to be realized. It may be opportune to relook at the provisions of the Constitution in this regard.

Second is devolution. By far the most celebrated part of the Kenyan Constitution for Kenyans is devolution. The country had high disparities in development and extreme exclusion in governance. While there are still exclusionary tendencies especially within national government, devolution has brought a feeling of belonging to many parts of Kenya.

The third is the Judiciary. During the review process, one of the most complained of institution was the Judiciary. It was corrupt, inefficient and lacked independent. Fundamental changes to its structure and operations were brought by the 2010 Constitution. Since then it has performed admirably. The referendum should not attempt to weaken the Judiciary.