This archive report was first published on 6 July 2019.
Published on July 6, 2019, the proposed BBI process has sparked debate about the future of Kenya's Constitution. As someone who has served with the Commission responsible for overseeing the initial implementation of the Constitution, I am aware of its inadequacies and deficiencies.
However, I have lived in Kenya long enough to grow a healthy skepticism about reforms owned and driven by the Executive or Parliament. The KANU Review Committee's conclusion in 1990 that Kenya was not ready for comprehensive reforms is a stark reminder of the Executive's tendency to push for changes it can manage.
The current Constitution was born out of the unfortunate events of 2008, and it is essential to learn from the past. The two constitutional amendment Bills approved by the National Assembly this week aim to change the structure of governance, making Parliament the pre-eminent organ. These Bills are no different from most of the Constitutional Amendment Bills proposed in the last nine years, which sought to further empower Parliament.
Most of these Bills have been retrogressive, meant to benefit members of the August House, rather than advancing key interests of the people of Kenya. The courts have given a veiled warning that they would strike down the amendment if it was ever passed by Parliament, as the changes proposed are so fundamental as to require the adoption by the people through a referendum.
Given the right environment, the Executive and Parliament would push amendments that would be detrimental to the reform journey. Hence, my fear that the Executive-driven BBI process would lead to trade-offs between the two institutions, resulting in reform claw backs.
What then ought we to do in this Constitutional amendment process? If there must be amendments, any proposals for change must answer two basic questions: Who benefits from the proposed amendments? And have the provisions sought to be amended been tried and tested sufficiently?
It is astonishing that we are rushing to change systems that we have barely tried. For instance, some people believe that our problem is the Presidential system or the structure of our devolution. What they forget is that these systems have been tried for less than ten years, and there has not been sufficient time to assess their suitability or to understand the changes we would need to improve or overhaul them.
