The clamour and the debate for change of the Constitution has begun in earnest. The major political players are slowly accepting that there is a need to tinker with the executive structure in our Constitution. The majority of Kenyans have however adopted wait and see approach.
The plausible explanation so far advanced which I wholly agree with is that the current Executive structure does not advance or promote the unity of the state.
Competition for power and resources
The winner-takes- it-all model that condemns other major political players to political Siberia for five years is not suited for a developing nation such as ours saddled with fierce ethnic and regional competition for power and resources.
The devolution structure of 47 counties was meant to decentralize power and resources but this has succeeded to some extent by dispersing 15 per cent revenue to the Counties. The national Government still retains the 85 per cent a huge chunk of the national budget now running into trillions of shillings. This huge concentration of resources at the centre means that the Central Government still retains a huge influence on the governance structure of the country and therefore generates a lot of interest from communities and regions.
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The one purpose of a constitution is to set out the fundamental conditions upon which individuals and groups within a country broadly agree to be governed. Constitutions usually provide limits to government by establishing and distributing powers between different branches, institutions or offices of the government.
Constitutional rules limit how each must perform its functions in the governmental process and what each may do. Constitutions also limit government’s powers by conferring individual and group rights against certain actions undertaken by the Government of the day.
Even as the clamour to amend the Constitution gathers momentum we must be careful not to destroy the basic structure of the 2010 Constitution. Joe Oloka speaking on Why Uganda needs a Constitutional Crisis illustrated how the powers-that-be have committed what he called ”Constitucide”-the act of murdering and mutilating the Uganda’s 1995 Constitution to retain power not for the betterment of the people but to fulfill individual egos.
Why it matters
Justice Ramaswamy of the Supreme Court of India in emphasizing the great importance of the constitution said that the Constitution, “unlike other Acts, is intended to provide enduring paramount law and a basic design of the structure and power of the State and rights and duties of the citizens to serve the society through a long lapse of ages. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future.”
He further stated that “it contains a framework of mechanism for resolution of constitutional disputes.” It also embeds its ideals of establishing an egalitarian social order to accord socio-economic and political justice to all sections of the society assuring dignity of persons and to integrate a united social order assuring every citizen fundamental rights assured in the of Constitution.
The Kenya Constitution Contains certain fundamental basic structures that we must guard against being amended or mutilated. At least those features in the fundamental law which are sacrosanct include supremacy of the Constitution, unity and integrity of the State, sovereign and democratic structure, rule of law, separation of powers, the independence of the Judiciary, secular character of the Constitution and Limitations on the amending power of Parliament.
No one’s property
Our Constitution is national heritage and not the property of one single party howsoever mighty it may be and no single party has thus a right to institute amendments in the party interest rather than in national interest. Even as we embark on identifying areas that need to be addressed care must be taken not to mutilate the Constitution we fought so much to bring into fruition. We must also heed to the warning given by Mwalimu Julius Kambarage Nyerere in his book; Our Leadership and the Destiny of Tanzania: “This is very dangerous. Where can we stop? If one section of the Bill of Rights can be amended, what is to stop the whole Bill of Rights being made meaningless by qualifications of, and amendments to, all its provisions?”
Mr Mwamu is an Advocate of the High Court of Kenya and the former President of East Africa Law Society
