By Sarah Nyakio
The current debate on whether to amend the constitution through a referendum caught the attention of the legal fraternity. A lot of things have been said in the ongoing push for a referendum but the question is; is the push for a referendum a legitimate issue or a political issue?
A battery of lawyers converged at the Four Points Hotel in Nairobi to develop a joint position and discuss whether there is a need for constitutional reforms. Constitutions provide an overarching legal framework that set out the basis of a social contract between the State and its people. They establish the institutions of government and their powers vis-à-vis each other and the people. Although any change in the Constitution can be characterized as a reform, the general term “constitutional reform” is customarily earmarked for proposed amendments that would alter in some fundamental way the structure of the government established by the people through the Constitution—that is, the organization of the legislative, executive, and judicial organs, the distribution of power, and the interrelationships among the three organs of the government.
Kenya promulgated what was celebrated as a progressive and robust Constitution in 2010. The Constitution formed the foundation as the supreme law of the land to make commendable provisions on devolution, a comprehensive Bill of rights, application of international laws and customs by asserting that the general rules of international law together with treaties and conventions ratified by Kenya, mandatory form part of the law of Kenya.
However, eight years down the line calls to change the constitution are up and going. Nevertheless, there is a need to have an audit and figure out what’s wrong with the current constitution. There is a need to critically analyze what is working and what is not before we ambush ‘Wanjiku” with a Yes or No answer. We need to adopt clear issues to guide the public not to be illogically swayed by politicians. There is a need to clearly define what issues need to be solved and whether the solution can only be limited to a referendum.
Currently, the Constitution has not been fully implemented for instance Chapter 6 on leadership and integrity. Presently, there are civil servants and state officers who have been accused of corruption but are still in office. The call for a referendum is based on the inefficiencies in governance which cannot be fixed by constitutional reforms.
“We cannot be calling for constitutional reforms without giving citizens the reasons for it. Politicians should involve Kenyans and make them understand why there is need for a referundum,” said ICJ Kenya chairman Kelvin Mogeni.
The legal practitioners insisted that there is a need for Kenyans to reflect on whether the amendments will serve our (people) interest or protect the interests of the politicians. The legal fraternity called upon the government to first, undertake an audit of the state of constitutional implementation that is informed by “Wanjiku” perspective. Secondly, to reconsider the approach on constitutional reform debate which must be guided and anchored in the Constitution and full compliance to the rule of law.
Lastly, they also asked President Uhuru Kenyatta to publicly direct all ministries, departments, and agencies to comply with court orders and judicial decisions.
Due diligence should be critical in the push for a referendum and the politicians need to keep in mind that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.
