Monday, August 05, 2019

Jealousy is not a good strategy

Thirdway proposes to change 29 Articles of the Constitution. Surely it was not intended that many amendments should be grouped together and require just one vote of support from any member of the public. The Kenya provision is inspired by the Swiss Constitution. In Switzerland, the Constitution and law require that a people’s amendment proposal be focussed and deal with only one topic. Jill Cottrell Ghai, Is Thirdway Alliances proposal to change the law constitutional?
Prof Ghai prefaced the above paragraph thus: Article 257 of the Constitution says: “An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” She argues that the provision, inspired by a Swiss one, was not intended to be used for the amendment of more than one provision of the Constitution. However, the language of Article 257 does not expressly state that only one proposal can be entertained at a time. If that were the case, it could lead to absurd outcomes, for example, a single proposal to abolish the Senate, without accompanying "consequential" amendments, would lead to the abolition of the institution while retaining dead provisions such as the ones pertaining to its functions.

Those opposed to the Thirdway Alliance's steps towards the amendment of the Constitution so far have advanced many arguments but few of them have advanced a persuasive constitutional one. Prof Ghai's falls among those that have the veneer of constitutional legitimacy but once one peels away the mask, reveals that the veneer is all there is.

I don't approve of the wholesale amendments proposed by Thirdway Alliance. I think they reinforce the constitutional confusion inherent in the political aspects of the constitutional order, especially the organisation of the national government and its relationship with devolved government. The 29 proposed amendments touch on disparate subjects all tethered to the idea that less government is less expensive government. That taking the devolution of public funds to its extreme end will be a boon for the people. I think it is foolhardy to experiment further with public funds; CDF spawned similar "development" funds that proved to be cash cows for a well-connected elite. Ward Development Funds, managed and overseen by county elected representatives, will not replicate the success of CDF but mirror the corruption and waste of all other public funds. I don't believe the proposal will lead to less expensive government but to a more corrupt and, therefore, more expensive one.

However, I can find no constitutional grounds to oppose Thirdway Alliance's proposals or to cast doubt that the proposals have been advanced in accordance with Article 257. Whether it is the question of public consultation or meeting whatever standards of proof are needed in order to approach the electoral commission, in my opinion, Thirdway Alliance has satisfied all constitutional requirements. I believe that its opponents, especially many from the civil society sector are unhappy that Dr Aukot and his partners did not invite the ancien regime of civil society to participate in the process as elite constitutional overseers to maintain the purity of their Mfangano days. Many of them are offended that he took his case directly to the people without so much as a by your leave and denied them their place in shaping the constitutional order; they are afraid that if the Bill garners substantial grassroots support, they will be unable to shape the constitutional future of this country for at least another decade, rendering many of them obsolete. In short, they are jealous. However, jealousy is not a constitutional ground to stop the Bill from being dealt with under Article 257.

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