Constitutional shibboleths and social media animus

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.

Time to put them out to pasture

The President cannot initiate Constitutional amendments or changes through the popular initiative under Article 257 of the Constitution. - [2022] KESC 8 (KLR)

The bulk of legislative proposals considered and enacted by Parliament are made by the national executive. It is the rare private member's Bill that is enacted by Parliament and assented to by the President. This is to say that for the most part, the President can send a legislative proposal to Parliament and Parliament, in its wisdom as the representation of the legislative will of the people, can enact it or reject it. Therefore, the President can initiate an amendment to the Constitution of Kenya. What he can't do, and the High Court, Court of Appeal and Supreme Court were adamant on this point, is to initiate Constitutional amendments by popular initiative.

It is important to remember one other thing: an amendment to the Constitution by popular initiative does not necessarily mean that a referendum must be conducted on the amendment. A referendum must be conducted if the amendment affects any of the issues found in Article 255. The question of whether or not a referendum is warranted is independent of whether the amendment was by parliamentary or by popular initiative.

As to the question of the "office of the leader of the official opposition", a referendum is definitely warranted. Going by how the Azimio One Kenya Alliance described the functions of the proposed office, it is clear that the proposed amendment falls squarely within the ambit of Article 255 ("the functions of Parliament") and on that basis alone, whether the proposals is a parliamentary one or a popular one, a referendum is necessary for the amendment to be adopted by the people.

Regardless of who brings the amendment process to life, we are being manipulated onto thinking that the amendment is not a bad one. The popular discourse regarding the proposal is that it is a new form of handshake between the new administration and the putative opposition, and it is almost always framed in those terms. The Minority Party in Parliament is not treated as part of Parliament but an Opposition Party in the Westminster style of parliamentary government. It is not. It hasn't been since 2013. But you wouldn't know it going by how the 11th and 12th Parliaments behaved with Parliamentary Parties taking their political differences to such dysfunctional depths that Parliament never effectively played its oversight role over the national executive. In short, Parliament shirked its role and the Jubilee administration got away with all manner of dodgy things.

If we allow the office of the leader of the official opposition to be established along the lines proposed by Azimio, it is almost certain to be the last nail in the coffin of parliamentary oversight and we can kiss whatever restraints there were on the national executive goodbye. First, oversight is not an individual endeavour but an institutional one. A single "office" is incapable of wielding the kind of collective power that Parliament, and parliamentary committees, can. Secondly, and more crucially, it absolves Parliament from the responsibility of lax oversight; parliamentarians can pass the buck and say, "Hey, the Leader of the Official Opposition didn't do this, that or the other" and they can play footsie with the executive to their hearts' content. If the office is established, it is the people who will come out the poorer for it.

Mr. Odinga, and his acolytes including Prof. Makau Mutua, have had a good innings at the hustings but they are more likely today to advance political ideas that are twenty years out of date, like the cult of personality they insist on building around Mr. Odinga. Mr. Odinga's ODM is no longer capable of fresh ideas; listening to the younger members of the party leadership (like Sen. Sifuna and Hon. Ongili), one harkens back to the Kanu of the late 1970s with the likes of Kihika Kimani and Kariuki Chotara springing readily to mind who were determined to sustain a cult of personality around Jomo Kenyatta even though by 1975 it was clear he was over the hill and clinging on to power by the skin of his teeth. It is time to put Mr. Odinga, Prof. Makau and their generation of the Old Guard of the Second Liberation out to pasture, and bury moribund and retrogressive ideas like the Office of the Leader of the Official Opposition in the deepest pit we can find.