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Why Kenyans should reject latest round of proposed constitutional changes

Dr Westen K Shilaho, University of Johannesburg

Kenya’s Building Bridges Initiative, which seeks sweeping amendments to the 2010 Constitution, is driven by a pact between President Uhuru Kenyatta and a seasoned opposition stalwart turned government ally, Raila Odinga. The proposed amendments target at least 13 of the 18 chapters in the Constitution.

The pact, sealed with a handshake in March 2018, followed shortly after yet another acrimonious presidential election which had pitted the two against each other.

Previous elite pacts have never enhanced Kenya’s democracy.

The ostensible goal of the Building Bridges Initiative is to resolve Kenya’s perennial election fraud problem. Kenyatta and Odinga insist that it will address problems attendant to Kenya’s winner-takes-all election system. This is hardly persuasive. Even with the introduction of county governments, Kenya’s 2010 Constitution has not addressed zero-sum politics. The president still retains enormous powers.

Kenyatta interferes with counties by starving them of revenue, and has usurped some of the functions of Nairobi county through military takeover. Popularly elected governors are either loyal to Kenyatta or other tribal barons owing to intimidation or sycophancy. Yet county governments were created to decentralise power and neuter personality cults.

The ‘winner-takes-all’ system, therefore, is not responsible for Kenya’s adversarial politics, unresolved historical injustices and a polarised society. The problem is a rogue political elite that is nestled in insular tribal politics and couched in impunity. Cyclic electoral violence is triggered by perennially stolen elections. Incumbents resort to state violence and tribal militia to suppress protests and retain power as was the case in 2007, 2013 and 2017 when elections were contested.

It holds true, as I argued in my 2018 book, Political Power and Tribalism in Kenya, that Kenya’s political parties are personal, tribal fiefdoms. Tribal barons assume that their views are representative of their supporters’. It is for this reason that Kenyatta and Odinga have confidently threatened party members with expulsion for opposing the initiative and mobilised state resources in their bid to cynically overhaul the Constitution.

Kenya descended into unprecedented violence following stolen elections in 2007 but the political elite have learnt nothing. In my view, entrenched impunity at the apex is Kenya’s existential threat, not its laws. The proposals in the final Building Bridges Initiative report, which must me put to a referendum, won’t solve this problem.

Credible elections

Those in favour of the Building Bridges Initiative do not appreciate the fact that competitive elections should rightly produce winners and losers. And that elections are carried out under agreed rules that must be enforced by robust institutions, foremost being the judiciary and electoral body.

Winners ought to govern and losers ought to assume their watchdog role. With credible elections, today’s winners could be tomorrow’s losers and vice-versa. So, political competition is not the cause of Kenya’s divisive elections. Neither are its multiple tribes. Kenya’s afflictions stem from institutionalised impunity, amnesia and electoral fraud.

Therefore, the so called win-win outcome that the Building Bridges project contemplates is unashamedly elitist. It betrays a disdain for the populace and trifles the fact that sovereignty reposes in the people. Referendums, like elections, produce winners and losers. Deputy President William Ruto has self-servingly urged for a compromise among the political elite on contentious issues to ensure an “uncontested referendum”. But referendums are often about polarising issues.

Bridge building proposals

The first Building Bridges report, released in November 2019, was seen by some as not going far enough to shift from a presidential to a parliamentary system.

Changes were made in a second report, released in October. But, in my view, the second report also has serious flaws.

One is the proposal to expand the executive by creating a prime minister’s position and two deputy premiers who would be appointed by the president and serve at his pleasure.

Adding positions to the executive will not realise “inclusivity, cohesiveness, and unity”. Instead, it consolidates power in the person of the president. This would be reminiscent of Kenya’s one-party dictatorship which ended in 1991.

In addition, the expansion of the executive does not address questions around a rogue political elite, accountability, disputed elections, justice and equity.

The latest report also proposes an increase in parliamentary seats. This will worsen a bloated government wage bill.

The initiative also has troubling proposals on the judiciary. For example it envisages placing the judiciary under the executive through a Judicial Ombudsman, a presidential appointee. This would obliterate what is left of judicial independence. Kenyatta has previously attempted to place the judiciary under the control of the executive. And he routinely ignores court orders. That imperils the rule of law.

Another proposal allows the president to appoint cabinet ministers from among members of Parliament. This would ensure, ostensibly, that cabinet ministers are accountable to Parliament. But the 2010 Constitution outlawed the selection of cabinet ministers from Parliament to ensure the institution’s independence.

A proposal to place the police under the Ministry of Interior has been reconsidered. This does not, however, imply that as it is, the police serve the public interest. The 2010 Constitution sought to place the police under civilian oversight, but efforts to reform the force have been largely unsuccessful. It is still used to perpetrate state violence and clamp down on dissent.

Central flaw

Finally, the biggest problem with the Building Bridges Initiative is that it is a product of an informal process – there is no provision for it under the country’s Constitution. This, in and of itself, should serve as a red flag.

While the initiative claims to foster unity and shared prosperity, the process has been opaque, non-participatory, and divisive. It ignores the root cause of Kenya’s disputed elections, which point to inability to manage democratic transition and submit to constitutionalism. Historically, this has accounted for cynical personality pacts and short-term tribal alliances.

Ultimately, disregard for the rule of law bodes ill for Kenya’s stability. This initiative will water down the Constitution. Approving it would roll back Kenya’s democracy. It, therefore, must be rejected.

Dr Westen K Shilaho, SARChI, African Diplomacy and Foreign Policy, University of Johannesburg

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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