The last few weeks or so have witnessed a number of calls for the creation of various positions to accommodate anticipated political outcomes. What remains unclear is the rationale for these positions, how or if they fit into the current governance structure, and whether they have long-term relevance beyond the politics of the day.
The tendency by political actors to seek to create positions for purposes of political expediency demands caution, especially due to the attendant wider ramifications: creating positions that have an effect on the system of governance, and may by implication usher in the return to a hybrid system of government. Decisions of this magnitude should not be taken lightly without widespread consultations.
Since independence, our Constitution was subjected to several amendments, under various administrations; to the point that it became difficult to ascertain the exact intent of the document, nor the direction it intended for the country. Rafts of piecemeal amendments were, in fact, the undoing of the old constitutional order, and partly informed the two-decade long debate on constitutional reform. It would, therefore, be wise to tread carefully before embarking on a new raft of amendments, especially if their intention is purely political. For as philosopher George Santayana once stated, “Those who do not learn from history are doomed to repeat it”.
The Constitution of Kenya 2010 is slightly under 7 years old. While some shortcomings have already been identified, to begin the mutilation of the constitution in these relatively early years may give rise to the beginning of the cycle that brought about the need for constitutional reform in the first place. If whatever frustrations there may be with the Constitution are substantive, then there are mechanisms through which these can be dealt with. Granted, the Constitution of Kenya 2010 may not be perfect. It does, however, remain a solid platform upon which to build the just and equitable society we all aspire to. It is unfortunate that its short lifespan has witnessed numerous attempts to subvert the spirit and letter of the supreme law.
Following extensive consultations, the drafters of the Constitution deliberated, identified and settled on the current presidential system. If the intention is to depart from this system, a sound rationale for doing so should be articulated. Changing systems of governance every so often would prove to be costly as well as disruptive to national development.
The greatest tragedy in all this is that we have been here before, and therefore ought to know better. That said, since 2013, a systematic process of disdain for and emasculation of the Constitution has taken place, almost as if the desire were to return to an era where the supreme law was so muddled and confused that in fact there was little in the way of rule of law at all! I very much doubt that this is the direction most Kenyans wish to see their country take, as we are all aware of the time, energy, and resources that were invested in the constitutional review process.
Consider the fact that the Constitution was promulgated in August 2010, after which 5 years was spent on ‘implementation’, or, crafting or amending the varied legislation required to operationalize the Constitution. The process had its fair share of up’s and down’s, with deadlines missed, and in some cases evidence of infiltration by partisan interests for the purpose of drafting sub-standard or self-serving legislation. Legislation on Leadership and Integrity, in particular, comes to mind. There has been little, if any, evaluation of the implementation process of the Constitution following the closure of the 5-year window. In my view, it is in the interest of all stakeholders that this process is undertaken to ensure the optimal operation of our nation and its governance institutions.
All is not lost, however, and as conscious citizens we are the ultimate defenders of our Constitution. The framework is still largely intact, and thus, we must ensure that as we prepare for the next polls in August this year, we ensure that the elective decisions we make are for posterity and will safeguard and fortify the constitutional dispensation, rather than subverting it for the benefit of narrow interests, thereby creating a society where impunity continues to be the order of the day.
As we prepare to exercise our democratic rights later this year, with the benefit of what we have learned since the 27th August 2010, we have seen and experienced both the pro’s & con’s of the Constitution, and are therefore better informed. It is imperative we use this information to our advantage, and for the betterment of our nation.