People — or politicians — have started to talk about constitutional amendment. Whether that is desirable is not the topic of this piece, but how the Constitution can be amended.
IT IS HARD TO CHANGE CONSTITUTIONS
Developing a Constitution is difficult and time-consuming. It is supposed to embody the wishes of the sovereign people, and it limits what government can do. Making it hard to change is a precaution against the people’s will being too easily overridden by politicians eager to extend their powers and shake off the limits placed on them by the Constitution.
THREE WAYS TO CHANGE OURS
Parliament can sometimes change our Constitution. This would require two-thirds of all the members of each House of Parliament (not just of those who turn up and vote) to vote in favour of the change. And they have to do this twice: on both the second and the third readings of the Bill to change the Constitution.
There have been examples of governments rushing constitutional amendment Bills through Parliament without even the MPs having much clue about them. Most notoriously, Milton Obote instructed Parliament to vote for a constitutional change, and told them, “You will find the new Constitution in your pigeonholes on your way out”. Under our Constitution, once an amendment Bill is introduced into Parliament, nothing more must happen for 90 days so that Kenyans can discuss the proposals. Parliament is supposed to publicise any Bill to amend the Constitution, and facilitate public discussion about it.
Some important changes are not left to MPs alone; there must be a referendum. The constitutional change proposed is not approved unless half of those who do vote in the referendum vote “Yes”. And the referendum is not valid at all, unless at least half the registered voters in at least 24 counties actually voted — one way or the other.
What changes are so important that a referendum is required? The Constitution has quite a long list. Some are reasonably clear. Any change to the national territory, to the Bill of Rights, to the term of Office of the President, the functions of Parliament or the structures of the county governments must have the support of the people in a referendum. To delete any of the national values and principles of governance mentioned in Article 10, a referendum is required.
But a change may not be just a question of altering words in a certain Article of the Constitution. One of the principles in Article 10 is “good governance”. All sorts of amendments to the Constitution could have negative effects on effective “good governance” even if no formal amendment was made to Article 10.
And an attempt to change the law to give some power to the President in the choice of Chief Justice was declared unconstitutional in 2016. The reasoning was based largely on the independence of the Judiciary from the Executive. Suppose there was an effort to do the same by constitutional amendment, and a Bill introduced that would involve altering Article 166 (about appointing the Chief Justice), an Article that does not use the word “independence”. Could someone argue that the referendum was not needed because there was no intention to change Article 160, which is called “Independence of the Judiciary”? Surely not: The substance of the Constitution not just the words must be what the referendum requirement is intended to protect.
The third way to change the Constitution is popular initiative, the procedure Okoa Kenya was trying to use. It requires that one million people sign in support of a proposal to change the Constitution. If this is successful (and the IEBC has to certify that the signatures have been obtained, which is the stage at which Okoa Kenya failed) the proposal has to go to the counties. If half of the county assemblies (or more) vote in favour, the proposal goes to Parliament. If half of each House (half of the total number) vote in favour, the President must sign.
If either House of Parliament does not pass it, it goes to a referendum. The same requirements apply as mentioned earlier: 20 per cent must vote in at least half the counties and overall at least half those who vote must be in favour.
If the change is one of those that require a referendum in an ordinary amendment process, there must be a referendum under the people’s initiative procedure, even if Parliament votes in favour.
ATTEMPTS TO CHANGE CONSTITUTION TO BENEFIT THE CHANGERS
Kenyans will remember previous efforts to change our Constitution.
Most efforts seem to have been intended to protect the interests of parliamentarians. One would have changed the date of elections from August to December. Since the second election under the Constitution was to be held in August 2017, this would have given MPs four more months in office. Apparently, a new Bill to the same effect is being introduced. Would MPs be prepared to reduce their term in office, leaving in December 2021? But even that would require a referendum, because the term of the President would be changed, too. Another Bill sought to remove parliamentarians from the class of “state officers”. Why would they have wanted to leave that distinguished group? Because they wanted to fix their own salaries instead of the Salaries and Remuneration Commission. They overlooked that — unless they amended another Article — any change they made to their salaries would benefit the next Parliament but not themselves! And, incidentally, they thought they could buy the judges off by removing them from the State officer class, too—presumably planning to give them more money when they did this for themselves.
There was another scheme to protect the Constituency Development Fund, because it was being attacked in court — and the courts were rather sympathetic to arguments that the kitty does not fit well with devolution, or with the role of MPs in supervising public expenditure, not in spending public money. And one Bill proposed that the Equalisation Fund (intended to ensure that marginalised areas in the counties could have services as good as other areas) should be channelled through constituencies not counties (it did not specify through the CDF, but how else would it have worked?).
One planned amendment was to protect the Deputy President from any liability in law, just like the President, while in office. The argument was that this immunity was in international law. This is nonsense. International law says “If you feel you must protect your President (or Deputy) from legal liability, he or she must not be protected from liability for crimes against humanity”. It certainly does not say “You must protect your President from liability”.
The Constitution tries to penalise lazy MPs: They lose their seats if they miss eight sittings without permission and without good reason. This is not very demanding, but there was, nonetheless, a move to provide that an MP could only be removed for missing eight sittings in a row.
THE GENDER QUESTION
Most of the other proposals were about the two-thirds gender rule, when the Supreme Court had warned that Parliament must have passed laws by 2015 to ensure there would be no more than two-thirds men (nor women) in Parliament.
In truth, the (mostly male) members do not want to adopt a scheme (which would be possible under the current Constitution) because they fear losing their seats to women — for example, if there is a quota scheme under which a quarter of the 290 constituency seats would be reserved for women. They were more prepared to expand the size of the already bloated National Assembly to ensure enough women. But somehow they never managed to pass this Bill.
There is a good reason to make it hard to change a constitution. The Constitution was meant to make major changes in Kenya. Many who want to amend the Constitution do not want change. This is not true of everyone of course. But Kenyans should scrutinise with great care any proposals that are made.
By Jill Cottrell Ghai