Katiba at Eleven

The Constitution of Kenya turned eleven years old twenty days ago. That day happened to be the day that the Court of Appeal rejected the pleas of the pro-BBI zealots and upheld the judgment of the High Court - save in the case of a few issues that didn't speak to the core of the BBI argument. The Government marked the ten-year anniversary of the Constitution but the event was marked in a muted fashion, coming as it is, when the pro-constitutional-amendment bandwagon had suffered a few setbacks, the least not being a split in the national executive regarding the fruits of The Handshake, the place of the Deputy President and the sniping from the idleness by civil society stalwarts.

It doesn't come as a surprise that the eleven-year anniversary passed without comment, whether from the government or the media. This is the last year before the next general election, which should be held on the 9th August, 2022, if Kenya isn't at war and parliament hasn't pushed back the date of the general election to 9th February, 2023 or 8th August, 2023 [see Article 102 of the Constitution].

In any case, the government was preoccupied with the BBI appeal and the national media had no interest in it - unless it was told to pay attention by the government, which seems to be the current sthatemedia relationship. I read an amazing Op-Ed by the group editorial director of the Nation Media Group, in which he tried to justify the soft-ball questions he and his fellow new editors lobbed at the president last week. While we would be excited to read a no-holds-barred bare-knuckle slug-fest interview of the president, most of us would settle for an honest accounting of the government from the head of that government. The salience of the constitutional anniversary falling on the same day as the appeal judgment should not have been given the go-bye by Mr. Mathiu and his fellow editors. And yet, it was, and we can't but wonder whether it is because news editors have fallen so low in their own estimation that writing copy for politicians and their games is what they can and intend to do.

The judiciary, also, did not care to mark the occasion and yet the BBI judgments of the High Court and the Court of Appeal were powerful affirmations of the ideals set out in the Constitution, the least not being the centrality of the people's sovereignty in the exercise of governmental powers by the president and other members of the government. The courts have awakened a powerful debate regarding what the Constitution is, what it does, whom it protects and the threats it faces from those who swore oaths to obey, preserve, protect and defend the Constitution.

Parliamentarians of all shades have proposed twenty-one separate constitutional amendment bills that have gone nowhere. Though the Bills were introduced in Parliament, they did not receive the support of the people, or the parliamentarians, for one reason or another. All proposed amendments drew strength from the utterances made by the constitution's supporters in 2010 that 80% of the draft constitution was good - and the remaining 20% could be sorted out after its promulgation. They had no intention of honouring their word; once the constitution was promulgated, they turned their attention to power-sharing and political horse-trading - the 20% that needed to be sorted out was left by the wayside. Then came along Ekuru Aukot's Punguza Mizigo Bill and the BBI Bill that wore the façade of popular support but, in truth, formed part of the desire of the political elite to exclude the people from consequential decisions that affect the lives of the people in intimate and destructive ways.

The Lancaster House constitution's guard-rails were removed with the intention of creating an imperium in the presidency and by the time section 2A was repealed in 1990, 38 amendments in total had been effected. The latest crop of 74 that formed part of the BBI Bill were a reckless Hail Mary from the political elite. They should have formed the highlight of the eleven-year celebration of the Constitution. They would have been proof that the guard-rails the Constitution has today serve a vital purpose - only truly necessary amendments that enjoy the support of the majority of the people shall be allowed t go through. Amendments designed to parcel out governmental power among buccaneers and brigands shall be fed into the woodchopper of the judiciary.