We should amend our constitution carefully

Opposition leader Raila Odinga (right) with Cotu secretary general Francis Atwoli during a past BBI rally. [File, Standar

The mystery of creation places mankind under twin sovereign masters; pain and pleasure. Thus, the ideal institution of public good became man’s primary obligation affianced to uphold one another’s wellbeing. Divinity too enthroned us with inherent mental faculties to differentiate right from wrong as the foundation upon which we highly esteem ourselves on good conduct, and sink our heads in the sand with actions that upset the moral fabric of society.

Undeniably, political arrangements are a result of humanity’s perverted state. They compel us to concede to our representatives the authority to legislate and impose suitable penalties upon breach of such laws.

Indeed, the ruling of men endeavours to direct individual actions of the masses en route the hypothetical end of maximum pleasure, but no human assembly has ever achieved this model due to corruption and selfishness.

Kenya’s constitution is one such theoretical ideal. It is a distinct written document whose practice pervades its written architecture. Thus, our constitution is an experiment, as all life is. It is a labyrinth of complex social, cultural, and political practice that includes much more than its letter. Consequently, it provides the citizen with opportunities to sway political plans through various tools designed to renew and recharge representative democracy.

Undeniably, calls to amend the constitution anchored by diverse initiatives including the BBI claim, in theory at least, to be propelled by the urge of fostering the fantasy of political unity, among other things, in Kenya. The novenary agenda of the BBI for instance attempts to redress evils that have remained elusive under our constitutional scheme of things.

Political antagonism

It’s argued here that given strong political will in the process of implementing fully this constitution, the need for such initiatives wouldn’t have arisen in the first place.

If our past collective pansophy is anything to go by, such calls, even though premised on greater public good for Kenyans, carry the aptitude to engender cut-throat ethno-communal frenzy and political antagonism.

They should rather be founded on well-reasoned, practical and implementable devices borne out of complete intercourse of palatable information to aid public discourse and participation. They should lay a precise roadmap and a way forward as to how such tools will aid our journey to the Promised Land as a united people.

But political arrangements are a result of humanity’s perverted state. They compel us to concede to our representatives the authority to legislate and impose suitable penalties upon breach of such laws.

Indeed, the ruling of men endeavours to direct individual actions of the masses en route the hypothetical end of maximum pleasure, but no human assembly has ever achieved this model due to corruption and selfishness.

Any modest analysis of contemporary political governance of lost innocence is adequate to persuade any observer that governments cannot be trusted in their prime functions including engendering the realm’s unity, peace and safety.

Yet, democracy is no child’s play. It’s a fixture wrought with hardball tactics ordained with rituals of moving targets. It survives not in the clash of interests, beliefs and opinions alone, but in the acumen to identify boundaries of the conflict. Democratic arrangements within groups, parties and state are as a rule geared to amplify the figure of beneficiaries of the privileged.

Today, due to information and communications technology advances, suspicion, distrust and criticism of government decisions are irresistible. This signifies the birth of a movement, the coming of age when power would be truly scattered through harnessing the power of technology as a calculated process of organising and political choreography to overwhelm Kenya’s political elite.

A decade ago and after due deliberation, ‘We the People’ voted for a new constitution as the Supreme law of Kenya. It has served well, challenges and upheavals notwithstanding. It has been refined through the country’s fiery furnaces many times, our Supreme Court’s nullification of 2017 presidential election being its crest. Thus, it has sailed through still waters and sometimes cruised through times of extreme turbulence.

If our constitution is nurtured, consummated and entrenched in our psyche as a culture, a new organism would emerge; actualisation of a government superstructure that’s neither hypothetical nor temporary as to the founding philosophy.

A premise ordained with buoyant life and authoritative persuasion against any kind of pestilence in safeguarding the standards and freedoms therein as would accrue maximum benefit to Kenyans. After all, such freedoms had been squeezed out of locked fists and strong arms of involuntary rulers through various struggles, harmonised into mandates secured with our own flesh and blood.

These beliefs were not unknown to the citizen; rather, they were sacred assumptions whose conservation and implementation remained strange to any former government.

Independent structures

That which was tentative, if any, in our scheme of government was the manner of ordering and operating our scheme of government to frustrate corrupt efforts intended to plunge our politics into a swamp of privilege resulting in totalitarianism, without the repository power to ‘the people’ for restraining such an adversary.

Thus, Kenyans needed a government of “freedom regulated by the constitution and the laws”. Our history’s imposing wisdom is the guiding principle in judging the worth and efficacy of numerous values and ideals enumerated in the constitution and the institutionalisation of independent structures of governance fundamental to the conservation of freedoms of Kenyans grounded on the evils of the repealed constitution while building on experiences gained in the past decade.

It’s wrong, certainly legally untenable to seek to amend the basic features of a constitution as to disfigure its unique firmament. Referendum calls appear to be knit and bound on ethno-communal lines encumbered with power-sharing arrangements, give and take deals and back-room sacraments whose political math and maneuvres remain largely unknown to the common citizen.

Let the citizen be allowed sufficient legroom of informed and effective voice to determine that which best benefits his welfare rather than representatives casting lots in their golden towers.

In sum, demands to amend the constitution ought to set good practices and precedents founded on Dworkin’s idea of “law as integrity” that is, the law as a medium that has been sanitised and vaccinated with principles of the moral and political right.

We should pursue our constitutional work-in-progress with a blend of idealism, imagination and practicality, not self-pursuits. Vested interests shouldn’t be allowed to weave lucrative personal projects of perpetuation and obscene greed for power as public emergencies; nor should such calls be left to the special good judgement of the government, president, parliament or opposition leaders.

Dr Nyatundo is a Legal Scholar, India. [email protected]. Prof Nandwa, teaches law at Shariah Umma University. [email protected]

d]