It is a fraught exercise to bring strong opinions on Twitter. Those with whom you may have interacted with previously, and who have become reliable responders to your 280 character musings, will not find it unusual that you may sometimes state things in a certain way. The vast majority though, might react in less-generous ways. Particularly when you find it very difficult to go along with their very wrong takes on the Constitution. Or the Standing Orders of each House of Parliament. Or the role of the Attorney-General when it comes to the legislation-making powers of the Government.
For example, some might not respond favourably when you point out the obvious: Articles 255, 256 and 257 collectively deal with the amendment of the Constitution. Article 256 deals with amendment by parliamentary initiative. Article 257 deals with amendment by popular initiative (of which much was heard during the halcyon days of the BBI fiasco). Article 255 decrees which constitutional amendments must be subjected to a referendum.
The Senator leading the Nandi County delegation in the Senate proposed several amendments to the Constitution. Four of them are particularly important. The proposed amendments to Articles 101, 136, 177 and 180, would have the effect of extending the term of Members of Parliament, the President and deputy President, members of county assemblies, and Governors and Deputy Governors from five years to seven years. Crucially, he does not propose any amendments to Article 142(2) or 187(7), to limit the term of the President and Deputy President, and Governor and Deputy Governor to one term only.
Someone on Twitter said that the introduction of the Constitution of Kenya (Amendment) (No. 2) Bill, 2024, in the Senate was an attempt to escape the requirement for a referendum on the amendments relating to the term of these elected State officers. I pointed out that this was incorrect; that regardless of whether the proposed amendments were through parliamentary initiative or popular initiative, they would still require to be ratified at a referendum. They (and some of their acolytes) were not amused.
It is a consistent occurrence that when people speak on the Constitution, many forget to read the provision they are speaking on with other related provisions. In this case, the fact that the senator had said nothing about a referendum was taken to be his intention to evade the referendum, forgetting that the referendum would be done, regardless of whether the senator said anything about it or not. If the four amendments were not subjected to a referendum, they would not become the law of the land. It really is that simple.
Then came the inexplicable allegation that the Attorney-General, in addition to being unqualified to hold the office of Attorney-General (which she definitely is), had refused or failed to advise on the propriety of the Bill. This flies in the face of Parliament's powers under Article 94(5). Only Parliament can make law in Kenya. The mandate of the Attorney-General under Article 156(4)(a) as the principal legal advisor to the Government does not mean that if the Senate does not seek the Attorney-General's legal advice before proposing amendments to the Constitution, the Attorney-General cannot render such legal advice after the Bill has been published on the propriety of proceeding with the Bill. The advisory power of the Attorney-General can be exercised at any time.
In any case, in my opinion, the proposed amendments are not "unconstitutional"; if the two Houses of Parliament pass the amendments with the necessary thresholds at each stage, and the amendments are affirmed at a referendum, then there is little that the nay-sayers can do about it other than challenge the process in the Constitutional Court. After all, the constitution, including constitutional amendments affirmed at a referendum, are the ultimate expression of popular will, no matter who proposed the amendments or why the amendments were proposed.
I don't believe the four amendments are going to pass in either House or, if they do, that they will find support among the people at a referendum. No one wants elected state officers to pitch camp for seven years without seeking a fresh mandate from the people. But the debate that the amendments have elicited, particularly the ones dealing with the presidential term, have successfully obscured consideration of the implications of the other amendments, like the one to Article 96(3) on the Senate's oversight over national revenue allocated to county governments. The proposed amendment would render the role of county assemblies moot, undermining devolution in the most destructive way possible.
I am not claiming that my views on the Bill, or the role of the Attorney-General in its consideration, is infallible or unassailable. They definitely are. But what challenge you mount against them can't be, "Please just stop", only because I have not adopted a shibboleth that you intend to defend beyond all reason on account of an ill-explained animus against a State officer.
