While reforms are timely, calls for referendum are misguided

The poor management of elections in Kenya is not the result of weaknesses in the Constitution. While elections are in dire need of reform, it is unclear that a constitutional amendment is a priority.

This was the conclusion reached by Dr Seema Shah, an elections expert, in a presentation at a conference that Katiba Institute convened last week, to present the findings of a partial audit of the Constitution.

According to Dr Shah, the bulk of reform for the most urgent issues lies in the implementation of existing laws on elections. In her analysis, while elections were a constitutional right, the country’s administrative procedures in relation to the vote tend to treat voting as a privilege and do not sufficiently place the voter at the centre of the electoral process.

Her presentation, the result of an examination of the management of the 2013 and 2017 elections, concluded that “some very targetted constitutional change may be necessary in the long term, but the most critical priority now is how to breathe new life into the Constitution.”

These views come at a time when sections of the political establishment are contemplating a referendum to amend the Constitution. While a political commitment for such an amendment has become apparent, it seems that those seeking to amend the Constitution are still struggling to articulate a justification. 

Electoral reforms, to be achieved through a constitutional amendment, appear a possible pretext for the referendum. There has also been talk about increasing “political inclusion”, which might also affect elections, as another pretext for amending the Constitution.

Katiba’s audit of the Constitution covers a number of themes, including constitutional commissions and independent bodies, devolution, Parliament, elections and gender.

The audit was motivated by a need to answer the question on whether or not calls for a referendum to amend the Constitution are justified. Katiba set out to answer this question by inquiring into how the Constitution is actually working. The audit raised as its main question: “If it is not working as we had hoped, is this because of something about the Constitution, or something about how it has been implemented?” 

The audit acknowledges that no Constitution is perfect and that while no sensible person would argue that the Constitution of Kenya cannot be improved, it is not possible to determine how, if at all, it should be changed, without an understanding of what might be wrong with it.

If there are problems with the way the Constitution has been operated, especially by politicians and by public servants, but also by the people, the country would need to fix these things and any changes to the Constitution will not make a difference. 

The audit noted that Kenya has ended up with 18 constitutional commissions and independent bodies. This is a rather large number and has been a source of criticism based on a view that the Constitution is too expensive. However, Kenya’s approach to constitutional commissions is not materially different from what exists in other parts of the world.

In other words, the functions that Kenya has assigned to commissions are generally those that other countries have assigned to commissions. Secondly, commissions receive only a tiny fraction of the public revenue, the bulk of which is retained by the national government.

Also, there are vast differences in the share of financial allocations that individual commissions receive, and it seems that the Treasury and the Legislature play favourites with some, which are given generous allocations,  while the rest are punished through the meager financial resources. 

The conference noted, however, the fact that public service salaries, including those paid in the commissions, are now some of the highest in the country and that this has changed how Kenyans view the public sector. Large salaries, and the trappings of office, create an incentive on the part of commissioners not to rock the system and may be responsible for an increase in the docility of some of these commissions, which is at the back of questions on whether or not the country needs so many commissions.  

On devolution, the audit notes that neither the National Assembly nor the national government really respects counties. The counties need a body that really understands their needs and that is the Senate.   

Katiba Institute was co-founded in 2011 by Yash Ghai, chair of the Constitution of Kenya Review Commission, and his wife Jill, also a constitutional expert. Helped by the credentials of these founders and under the leadership of a visionary director, Waikwa Wanyoike, Katiba has emerged as a key organisation in the promotion of constitutionalism in Kenya.

The audit contributes significant clarity to answering the question on whether or not Kenya needs a referendum, and is necessary reading by the politicians that are currently agitating for a referendum.

- The writer is the executive director at KHRC. [email protected]