Thursday, September 07, 2023

Beware constitutional fetishists

If Mohamed won't go to the Mountain...

The only president, I think, who was happy with the Constitution of Kenya when it was promulgated in August 2010 was Mwai Kibaki. He was serving out his last term. He had the Cabinet he wanted and exercised the powers of a small god. None of his successors has ever been happy with the no-longer-new Constitution. Uhuru Kenyatta conspired with his bitterest political rival to amend it through the asinine BBI. Uhuru Kenyatta's successor is going about the same enterprise in a more subtle way.

Every president, whether they are happy with the constitution or not, could always do with an amendment or two to strengthen their hands to do the things that they want to do in the way that they want to do them. President Ruto is not unique in this regard. But the game he is playing in the constitutional amendment game is a subtle and nuanced one. He isn't ramming the proposals down our throat like his predecessor.

I saw somewhere on the interwebs that someone thinks that the parliamentary "dialogue" committees are founded on legal quicksand and now I am convinced that Kenyan lawyers have been infected by the same brain-eating prion disease that has infected USA culture-warriors.

The "dialogue" is conducted by parliamentarians in their capacity as parliamentarians and it is wholly consistent with the broad mandate of Parliament to consider issues for the welfare of the people. If the "dialogue" leads to fresh change-the-constitution calls, the only reasonable condition should be that the constitutional amendments must be prosecuted in strict compliance with Chapter Sixteen of the Constitution of Kenya (and the judgment of the Supreme Court on the role of the president in the whole affair).

At present, the "dialogue" has not gone far enough and though among the terms of reference of the parliamentary dialogue committees is recommendations on amending the constitution, the recommendations have not been made. Of course, we recall the proposal to establish the office of the leader of the official opposition and if this proposal forms part of the recommendations of the parliamentary dialogue committees and Kenyans vote freely in a referendum to adopt the new office, only a mad-cow-disease-mad lawyer will object to the amendment. The voice of people, it seems, only interests these lawyers when it supports their preconceived notions of what Parliament can and cannot do.

Kenyan constitution-making has always been a messy affair. Anyone who suggests that there is an accepted template for constitution-making is not to be taken seriously. There are benchmarks, and best practices, but there is no single true way to make or amend the constitution. Certainly, how to choose what to amend and when to amend it is subject only to the politics of the day and the support of the people. We laud the lawyers who do the difficult work of holding the agents of the state to account, but we have nothing but scorn for those who fetishise the constitution beyond all reason.

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