Wednesday, July 17, 2019

Missing the forest for the trees

The whole of Chapter Sixteen of the Constitution deals with amendments to the Constitution. Some amendments require a referendum. Many others do not. An amendment relating to the size of Parliament does not require a referendum. Nor one relating to an expansion in the size of the national executive. Nor, surprisingly, regarding emoluments paid to state officers. So those among you with a habit of declaring with finality that some amendments cannot be made should really rethink their constitutional absolutism.

What we failed to do, even at the height of the last major push for constitutional reforms, was to examine the motivations that led to the demon seed of a constitution that we replaced in 2010. What went wrong is not examined inasmuch as who was responsible. Jomo Kenyatta and Baba Moi shoulder the lion's share of the blame. An apathetic, cowed electorate is given the benefit of the doubt, though some of its leading lights bent over backwards to excuse every step taken to render Kenya's constitutional order supine and feckless.

The recent intrigues surrounding a referendum to amend the constitution follow the same pattern that led to the debasement of the former constitution. The loudest voices, and the strongest protagonists, have managed to disguise the true cause of Kenya's constitution-less governance ethos. We are reminded almost on a daily basis that the constitution is to blame for governance instability, that if it is tweaked in this area or that, we shall enjoy the fruits of devolution. The constitutional order established by the constitution, we are harangued, does not properly represent the "face of Kenya" and, therefore, it is necessary to make changes so that "no one is left behind" when it comes to development and prosperity.

The justifications for constitutional change are legitimate sounding but they are all bullshit. Parallels can be drawn to the change the constitution movement of the 1970s that gained prominence when it became apparent that Jomo Kenyatta was on his last legs. The true purpose of the movement, one which its backers didn't care to hide, was to drive a stake through the heart of the constitutional order to keep Daniel Moi from State House. The aim of the 2019 referendum choir is the same: to keep William Ruto from State House. Every other accoutrements festooning the pro-referendum bouquet is bullshit.

What should be apparent is that "the people" are an afterthought - though, as in the '70s and '80s, there are those among them who will bend over backwards to ensure that the people are given the constitutional shaft. We are being blinded to the foundation of the motives behind the push for constitutional change by, quite frankly, specious arguments about why the constitution cannot or should not be amended. Instead of admitting that our constitutional order exists only in name, we are focussed on holders of state offices and the power they wield by foregoing constitutional restraints in almost all their acts. We, the people, will not hold them to account and, consequently, they see nothing wrong in dipping deeper and deeper into our pockets for higher and higher taxes to pay for, among other things, "night allowances" for parliamentarians, allowances for spouses of certain state officers, and similarly patently unconstitutional acts.

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