Constitution: Amendment almost impossible

A lot of noise is being made by the people who rejected the Proposed Constitution about the need to amend the new Constitution before it is implemented. Doing so will be illegal and unconstitutional. The wise among the proponents of amendments have called for amendments to be made constitutionally. But that, according to Nzamba Kitonga, the chairman of the CoE, will take at least ten years.

For the Constitution to be amended according to its own stipulated procedure its Articles 255,256 and 257 must be followed. These are very cumbersome procedures that are deliberately designed to take a long time so as to give everyone ample opportunity to weigh the pros and cons of amending the new Constitution. When William Ruto and the NCCK leaders talk of following the stipulated methods of amending the new Constitution, they appear to be reasonable. Unfortunately the Catholic Church seems to be impatient and wants the amendment done immediately. Whatever steps the Government takes the law must be followed in the manner six million Kenyans chose.

Article 255(1) says amendment to the new Constitution shall be enacted according to Parliamentary initiative or by popular initiative and approved by referendum if the amendment relates to the supremacy of the new Constitution ; the territory of Kenya; the sovereignty of the people; the national values and principles of governance which include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and sustainable development.

Amendment must also be approved by referendum if they relate to the Bill of Rights;
the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of the Chapter on amendment.

According to Article 255(2) a proposed amendment shall be approved by a referendum under clause (1) if at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment is supported by a simple majority of the citizens voting in the referendum.

An amendment to the New Constitution that does not relate to a matters specified above shall be enacted either by Parliament, in accordance with Article 256, which deals with amendment through Parliamentary initiative; or by the people and Parliament, in accordance with Article 257 which deals with amendment by popular initiative.

Article 256 (5) says if a Bill to amend this Constitution proposes an amendment relating to a matter specified in Article 255 (1) the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct, within ninety days, a national referendum for approval of the Bill; and within thirty days after the chairperson of the Independent Electoral and Boundaries Commission has certified to the President that the Bill has been approved in accordance with Article 255 (2), the President shall assent to the Bill and cause it to be published.

The new Constitution can also be amended by popular initiative by collecting a million signatures from registered voters and then make a general suggestion about the amendment or draft a bill. The new Constitution says if a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill and then deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.

It also says if the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of Article 257, which deals with amendment through popular initiative, the Commission shall then submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.

The Constitution adds that if a county assembly approves the draft Bill within three
months after the date it was submitted by the Commission, the Speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it. If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay; and then a Bill under Article 257 is passed by Parliament if supported by a majority of the members of each House. The new Constitution then explains if Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Articles 256 (4) and (5).

But the new Constitution explains if either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in 255 (1), the proposed amendment shall be submitted to the people in a referendum.

All these parts of the new Constitution prove that Nzamba Kitonga is right that it may take well over ten years before it is amended. One important aspect about the amendment of the new Constitution is it involves the new set up of Parliament with two new chambers which have yet to be established. William Ruto and his church friends know very well that some parts of the new Constitution they want amended are among those that require the approval of national referendum.

Since the new Constitution will be with us for a very long time to come, it is prudent for all Kenyans to learn to live with it. This is why even though there is a very good reason to bar William Ruto and his friends from participating in the implementation process, way must be found of involving the “NO” group in the task ahead. Weather they like it or not all Kenyans have to accept the new Constitution as it is or else wait until all institutions needed to amend it have been established and then start the grueling job of fowling the right procedure to amend it.

There is little doubt that the people who said “NO” to the Proposed Constitution don’t like the developments in the country at the moment. Some of them are well known mischief makers. It is therefore very important to keep a very close watch on what their next step will be like. Some of them may engage in activities that will make implementation of the new Constitution extremely difficult.

The special cabinet team that will be looking at the implementation process has closed the door to the Ministers who said “NO” to the Proposed Constitution. The temptation by Parliamentary Select Committee to be known as the Constitution Implementation Oversight Committee (CIOC) to do the same will be high, but MPs would be advised to look at the spirit of the new Constitution and what it says about inclusiveness. The Commission on the Implementation of the Constitution (CIC) however will demand the services of experts who genuinely want to help this country frame the various legislations of the new Constitution without any hidden motive.

Following the well known Lyndon Johnson tactic of keeping close to one’s enemies, Prime Minister Raila Odinga and President Mwai Kibaki must have concluded it is safer to have William Ruto in the Cabinet, where they can exercise some form of control over him, rather than fire him and let him cause serious damage when he is plotting against the Government and the new Constitution from the outside. Using that tactic Lyndon Johnson refused to fire the dread FBI boss Edgar Hoover and when he was asked why the American President said it is “better to have him inside the tent pissing out, than outside the tent pissing in.”

MPs should think of that clever tactic before locking William Ruto completely out of CIOC.