KATIBA: Is it time to change the Constitution or reflect on it?

The public and the media are showing much interest in the Constitution.

To some extent it may be that people’s expectations of the Constitution have not, or only partially, met. Our Constitution has often been regarded, here and abroad, as one of the most, if not the most, progressive in the world. The enthusiasm with which it was first received is fast evaporating. Raila Odinga, a major architect of the Constitution, is clearly disillusioned and wishes to install the parliamentary system, as well as deeper and more effective form of devolution — positions he took at Bomas, but seems to have abandoned after the 2007 debacle (even though the constitution then was the Moi constitution, which everyone wanted to escape from). The current Constitution, after the advice of Kofi Annan and his team of Eminent African Personalities, is largely based on the Bomas draft — except for a few features, the main ones being the system of government (reverting to presidentialism) and devolution.

We are now back to debating reform of the reformed Constitution.  The Star’s leader of last Wednesday had this headline: “Parliamentary system has many advantages”.   Advantages, it suggested, could include shifting the focus away from ethnicity to social issues (though the explanation is not fully convincing — at least in the small space allowed for this discussion).

The Standard , on the same day, headlined its leader: “Kibaki case shows that a new Constitution doesn’t cure ills”— referring to the then President’s abuse of his office to gain favours for his nephew and niece for graduate studies in Australia, which should have gone to children of the poor and deprived, and despite the Constitution’s prohibition of conflicts of interest.

What do we make of it? Yash Ghai was reminded of a question put to him by a distinguished South African scholar some years ago: “You people borrowed significantly from our Constitution [this is quite true] but you constantly ignore it”.

Yash answered, “Yes, but you had Mandela and other freedom fighters, we have Kibaki and other self-serving followers of Jomo in control of the Constitution”.  Somewhat later Jomo Kenyatta’s presidential son now claims to be converted to the Constitution — and thus renouncing his father’s policy and practice. Is he serious, and if so, will he succeed — in the face of numerous colleagues and their friends who are deeply embedded in corruption, and no doubt planning to succeed to the presidency?

 

THEMES AND MOTIVES

One theme of the current debate is really about who will hold particular offices. Who will be the next President? Or who might be able to continue in office as a Prime Minister if not a President? This is not new: Arguable that is precisely why we have the presidential system rather than a parliamentary system.

Generally people who worry about these things are the politicians themselves. It is generally politicians who argue for a change in the election date from August to December. But not, of course for earlier elections!

A second theme is about expense. Various citizens have decided that the constitution is too expensive (too many MPs, including women county members, too many governors and MCAs). Some politicians have leaped onto this bandwagon, though one wonders whether, if it came to the crunch, they would vote to limit their own numbers  – any more than turkeys would vote for Christmas.

Thirdly, there are people who are thinking about how we can improve governance, get better policies, and more accountability.  These tend to be scholars, lawyers, and members of NGOs. However, Raila, and Kisumu governor and scholar Peter Anyang’ Nyong’o, have argued for a major structural change — changing the present system of government, the presidency, to the parliamentary system. They have provided thoughtful reasons for this change, including changing the nature of the government from one person government to a more democratic collective system. Raila has also advocated another change, in the system of devolution: From two tiers to three, with the major devolution policy being made in one of 12 to 14 second tier, with administration largely at the third tier. Both of Raila’s preferences figured in the “Bomas” draft of 2004, and in the Committee of Experts first draft of 2009.

Altogether, the proposals include the self-interested, the knee-jerk, the thoughtful and indeed the regressive and the opportunistic.

NEED FOR RESEARCH AND REFLECTION

We are in desperate need of the thoughtful approach — what we might call a principled approach. There are people who are genuinely trying to assess how well the Constitution has worked, and whether change is needed.

What is working or not working?

First we need to understand what “working” means. How was a particular institution intended to work and what were the purposes in setting it up? If it is not working like that, is it because of the way the Constitution is drafted, or some other reason? And if the latter, would changing what the Constitution says make any difference, or would the same sorts of interests that have thwarted the current provisions operate to defeat new ones?

No doubt we would save some money if we had fewer MPs. And fewer MCAs. And no senators. But cost alone is not the central issue. If there would be costs of a different kind in abolishing an institution or posts, we should think twice — or more. If we did not have the Senate, would devolution be even more at risk from the government and Parliament, for example?  If MPs are very worried about expense, they could save a good deal of money themselves (like avoiding trips to watch sporting events and “retreats” to places that “necessitate” per diems).

Some people complain of too many commissions. But all the work they do must be done by somebody.  And there are many other bodies (we usually call them parastatals) that exist or are still being created and which establish more jobs and spend more money. Nor do the complainers study the purposes of these, independent, commissions.

A considerable part of the structure and remuneration of the state is not dictated by the Constitution. People who manage them, including the President, effectively make their own choices — driven as Uhuru has shown, by political expediency.

Among the thoughtful projects is one by a team of civil society scholars and practitioners reviewing the extent of the implementation and impact of the Constitution, organised by Katiba Institute. The aim is to get a broad picture of the working and impact of different institutions. To be published shortly, the sections contain a careful analysis of the background to various aspects of the Constitution and how far the consequent reforms have borne fruit — and why or why not.

There is particular interest in the degree to which state institutions, particularly the Executive, the Legislature and the Judiciary have followed and respected the Constitution. They do not have personal or institutional interests, other than that the values and goals of the Constitution are achieved.

THE COSTS OF CHANGE

If you are under 25 or so, you will easily remember the effort that went into getting the current Constitution.  The consultation, the education and the debate. There is a lot of talk of a referendum. But by itself a referendum is a very weak instrument for public involvement. We need that consultation, the education and debate. It needs time.

Constitutional reform is also expensive. All sorts of things might have to be changed. Someone should estimate the cost of abolishing a county, for example.

Reform is also risky. Risky because, first, things may not work as people hoped (in the same way as the Constitution being changed worked differently). Second, while “they” are changing the bad things, they may change good things too.  You might like to think about what bits of the Constitution you really like. Who might want to change them? Can you be sure that if a process of constitutional change beings you might not actually lose the bits you like rather than getting rid of the bits you don’t?

By YASH GHAI and JILL COTTRELL GHAI

Authors are directors of Katiba Institute