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Introduction
In the words of Thomas Jefferson, "I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered, and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
These timeless words by Jefferson underscore the importance of adapting legal and constitutional frameworks to the evolving needs and values of society. They prompt us to reflect on the relevance of our own Constitution, in this case, the Constitution of Kenya 2010. The question we must ask ourselves, as Kenyan citizens, is whether our current constitution still fits the dynamic landscape of our nation, or if there is a pressing need to amend it.
On the 26th of August 2023, a day before the commemoration of the promulgation of the Constitution, I conducted a survey to gauge the opinions of the youth in Kenya regarding the amendment of the Constitution. This survey, conducted in close collaboration with the Law Students Association of Kenya (LSAK), sought to capture the perspectives of 100 law students across various law schools in Nairobi. The results of this survey, as depicted in the pie chart below, provide valuable insights into the stance of the younger generation on this crucial matter. Specifically, 13% of the surveyed students expressed support for amending the constitution, while a significant 87% believed that the constitution should remain unchanged in its current form.
(The pie chart represents youth opinion on the constitution amendment. 13% were for amendment of the Constitution while 87% were not for the amendment)
As a believer in Democracy and fully aware that the majority has the right to make decisions, but the minority should still have the opportunity to express their opinions, these findings serve as a microcosm of a broader conversation taking place in Kenya today, and they invite us to delve deeper into the reasons behind such a division of opinion. Within this context, we explore the dynamics and considerations surrounding the potential amendment of Kenya's constitution in the following sections.
Why the Youth?
Like many other African countries, Kenya has a large and growing youth population. The history of their involvement in the constitution-making process is not well documented but they played a critical role. This role can be traced back to May of 1997 when it was obvious that the Kenyan Political scene would be won by the ruling party Kenya African National Union (KANU). Political tensions increased dramatically in June 1997 with the establishment of the National Convention Executive Council (NCEC) which was composed of civil society and opposition political parties. They called for a mass-action campaign that attracted significant support, especially from the youth. The Moi government's violent reaction to the NCEC's campaign prompted serious civil unrest and instability. The police violence, amply recorded and broadcast around the world, evoked fears that Kenya might slide into a cycle of chaos all too familiar to Africa. However, the Kenya political bubble seemed to have burst. How could one explain this new motivation of the Kenyan people, who proved to be well-organized and clear in their demands for constitutional change? The answer is simple, the youth were involved. They were involved in the repeal of Section 2A of the previous constitution. Sadly enough they were used in the 2007-2008 post-election violence which in my opinion shaped the 2010 Constitution.
Why should we change the Constitution?
A growing segment of Kenyan youth (who formed 13% of my survey) is questioning the effectiveness of the winner-takes-all system, given the persistent political instability. Some propose adopting an alternative approach inspired by the United Arab Emirates, where emirs represent specific Emirates and collectively elect an administrative president. This shift aims to curtail the discriminatory allocation of resources and promote inclusivity among Kenya's diverse 44 tribes.
Additionally, some of the people in this section hold the opinion that Kenya's Constitution faces criticism for lacking explicit provisions to hold individuals like Mackenzie, a self-proclaimed evangelical pastor with controversial affiliations, accountable. These critics argue for an amendment that empowers the constitution to address such cases for the number of bodies recovered in relation to the cult was one that required keen observation. Additionally, concerns about Article 27's protection of gender minorities and allied communities were raised, with calls for explicit language to reflect Kenya's progressive stance.
The vagueness of certain constitutional provisions, such as the ⅔ gender rule, has drawn attention, especially in this survey. Some suggest reducing the number of constituencies to mathematically enable compliance with this rule while allowing for nominations to fill the gaps. Others contend that it should be done away with altogether. Chapter 6, which in their opinion focuses on character, is difficult to legislate and should be reconsidered, emphasizing the importance of equity over an unattainable ideal of 100% equality.
Joshua Kimani, among those advocating for change, outlines several key areas requiring constitutional review. Kimani argues that the existing 14-day limit for the Supreme Court to decide on these complex cases is insufficient. He contends that reform efforts should prioritize not only expeditiousness but also efficiency to ensure a just and thorough resolution process.
Another point of concern is the functioning of Kenya's two-tier parliamentary system, consisting of the Senate and the National Assembly. He noted the ambiguities in their respective roles have led to calls for clarification. Addressing these distinctions, as advocated by some, is seen as a means to enhance legislative effectiveness and streamline the governance structure.
Joshua also questioned the role of the Chief Justice. With the Chief Justice holding multiple roles, including chairing the Judicial Service Commission, concerns have been raised about potential conflicts of interest. He said that it is imperative to appreciate that the holder of the office of Chairperson of the Judicial Service Commission may be expected to appear before the House or its Committees to answer audit queries in the capacity of Chairperson and not as a judicial officer performing judicial functions. He questions how will the head of one arm will appear before another arm more so the Chief Justice. To uphold the principle of separation of powers, reform efforts are urged to resolve this perceived conflict and ensure a clear separation of roles within the judicial branch.
Furthermore, according to him, there is a growing call for the reexamination of the distribution of funds to counties as a means of strengthening devolution. Currently, many countries rely heavily on the central government for financial support. Reviewing this distribution system aims to reduce dependency and grant counties greater fiscal autonomy, aligning with the original intent of the devolution concept.
These issues, raised by Joshua and various voices in Kenya's constitutional discourse, underscore the importance of addressing structural and procedural concerns to enhance the nation's governance and justice systems. As Kenya explores the path to constitutional reform, these considerations serve as valuable guides in shaping the nation's future.
Why should we not change the Constitution?
In the survey done, we were taken through memory lane when a member reminded us of the message that was being used by the Current Regime "Mnataka kubadilisha uchumi kwanza ama kubadilisha katiba kutengeneza vyeo kwa watu" this loosely translates to “Do you want to change the economy first or change the constitution to create more seats for people”
The youth in this section raised genuine concerns about who will finance the office of the opposition citing the hard economic times and that Kenyans can not afford another big office. This group was of the opinion that even without the office of the official opposition, we were in almost a similar situation when former Prime Minister Raila Odinga had a handshake with then-President Uhuru Kenyatta. In their own wisdom, Raila Odinga was not as effective as an opposition leader then for he seemed to align with the president’s views.
Additionally, they were concerned with the role of the leader of the opposition when the current office of the deputy president and the deputy governor are not clearly defined. This was evident in the Uhuru administration when the current president was complaining that he was not allocated any roles
For some, the office of the opposition leader has nothing to do with solving the winner-take-all-all situation! Notably, the problem, according to them is the unavoidable ultimacy of an electoral competition. This can not be solved via a constitutional amendment. Questions were also raised as to whether our constitution was designed to have an opposition leader in government. They stated that the creation of this office would cause a serious constitutional crisis.
The survey revealed that the majority of the youth were concerned by the fact that politicians seem to understand the Constitution of the land as just paperwork. They bulldoze almost everything they feel is right for them. They were afraid that even the amended constitution would be taken as opinions for consideration. So the country should at least protect the constitution where it is.
I also noted that most people who were not for constitutional change also were of the opinion that we have not progressed as a society as much as to provide gender minorities a space in the constitution, arguing that Article 27 is good as it is.
Another concern that I found interesting was that the Constitutional Amendment is a very emotional Process just like the Elections in this Country are. He noted that any time the Question is raised it elicits mixed reactions from Leaders and Kenyans. And we are not ready for it. It was noted that issues since the promulgation of the Constitution Of Kenya rest with implementation, not that it's not in practice.
Another view was that the search for a perfect state is always a marathon whose finish line keeps shifting. It is very risky to peg the search for perfect constitutionalism on amendments, instead, the path to such should be inculcated in the people themselves.
My opinion
As per the survey, it is evident that most youth are not of the idea of constitutional amendment. However, in my opinion, what everyone overlooked was the history of the Constitution of Kenya 2010. While sharing the same sentiments with Cyprian Nyamwamu, those who have been given the mandate of protecting this constitution from its promulgation are the very same people who did not believe in the constitution and ran the NO campaign during the referendum.
I am also alive to the fact that Hon Otiende Amolo calls this constitution a compromised document. It was not accepted by anyone. The then President Mwai Kibaki did not want devolution. The ODM party led by Hon Raila Odinga did not want the presidential system and wanted it replaced with the parliamentary system. The church did not want the mention of Kadhis Courts and the Muslims asked why the Kadhis were still being appointed by the Judiciary. The Civil Society opined that we were limiting the full hoge of rights for they wanted to express mention of the right to abortion and sexual minorities. The national assembly was not happy because we introduced the Senate and the Senate was not happy because their role was limited. Even the Committee of Experts were not happy because the MPs introduced 80 more constituencies.Taking all these into consideration, why would we amend only one side of the compromisation and leave all the rest?If you ask me, do we have a perfect constitution, then I would confidently say no. However, is this the right time to amend it? In my humble opinion, the country is not ready for another constitution if we can not protect and fully implement the current constitution.
Conclusion
In conclusion, I want to express my heartfelt gratitude to all those who participated in this survey, as well as extend my appreciation to the Law Students Association of Kenya, Nairobi Region, for facilitating this platform to share your perspectives. As we continue to witness ongoing discussions about potential constitutional changes, it is imperative to recognize that you have made your voices heard, resolutely rejecting any such attempts. Through this article, we aim to inform the nation about your unwavering stance on this matter.
