implementation matters

In Kenya, fresh push for constitutional amendments

By Victor Abuso

Posted on August 29, 2023 09:35

Lawyers at the Supreme Court in 2021, during the ruling on the Building Bridges Initiative. (REUTERS/Monicah Mwangi)
Lawyers at the Supreme Court in 2021, during the ruling on the Building Bridges Initiative. (REUTERS/Monicah Mwangi)

Thirteen years since the promulgation of Kenya’s constitution, lawyer PLO Lumumba is leading a movement to revisit key sections, igniting the possibility of a referendum.

As Kenya marked the 13th anniversary of the promulgation of its new constitution on 27 August, constitutional lawyer Patrick Loch Otieno Lumumba (PLO Lumumba), is spearheading renewed calls for constitutional amendments.

Lumumba was among the experts who wrote the constitution over a decade ago.

He and other eminent figures have formed a pressure group, named Promoters of Popular Initiative, to start discussions that will lead to a referendum.

Constitutional moment

The chapters they want revisited are Governance, Leadership and Integrity, Representation, the Electoral Commission and the Structure of Devolution.

“We must have a constitutional moment. There is an opportunity to reexamine the constitution,” Lumumba said, adding that the time is ripe for the constitution to be reevaluated by engaging the people directly.

To kick off the process, the pressure group intends to initiate a signature campaign drive, in accordance with Article 257 of the constitution. They need to get at least one million registered voter signatures through a popular initiative that will lead to a referendum.

“The constitution jealously and magnanimously guarantees us, an audience, to initiate amendments directly as a people,” Lumumba said.

This will be the fourth attempt to change the constitution after the last three failed due to technical reasons.

The first attempt was in 2015, when the Coalition for Reforms and Democracy (CORD), then in opposition, pushed a bill commonly referred to as the Okoa Kenya Bill. The electoral body ruled that the opposition failed to meet the required threshold of collecting one million signatures of registered voters to proceed into a referendum.

Punguza Mzigo

In 2019, another constitutional expert, Ekuru Aukot, who was also involved in the writing of the constitution, attempted the move through the Punguza Mzigo Constitution of Kenya Amendment Bill, but did not make it after regional assemblies failed to approve the bill.

The last attempt was in 2021, when former President Uhuru Kenyatta and opposition leaders, who had entered into a political handshake engagement, launched the Building Bridges Initiative (BBI) to address the winner-takes-all approach in the country’s electoral cycle, which they say leads to post-election violence.

On that occasion, the Supreme Court ruled that the process was unconstitutional after it failed the threshold of being a popular initiative but rather an initiative originating from the president himself and not the people.

Leadership problem

Brian Wanyama, a political analyst, tells The Africa Report that Kenya does not need a constitutional change, but instead it needs leaders who respect and abide by the current constitution.

“Kenya has a leadership problem. We have a good constitution, but our leaders are not willing to implement it,” he says, blaming the current and past top leaders for disregarding the law and capturing constitutional institutions like parliament and the judiciary for their own interests.

Martha Karua, former running mate of Raila Odinga in the 2022 presidential race, is also against attempts to amend the constitution, blaming those in power for failing Kenyans, saying no amount of amends will change the mindsets of current leaders.

“We have a great constitution which we have deliberately failed to faithfully implement,” she says.

With ongoing political talks after a series of deadly protests in the past months over disputed presidential results, President William Ruto says he is willing to support changes in sections of the constitution, through parliament, in accordance with article 256 of the constitution, to create the office of the leader of the opposition, which was abolished in the old constitution.

“If they want the office of the leader of the opposition, I am ready,” Ruto told a gathering during his tour in the Western region last weekend.

Ruto says the office will enable the opposition to properly discharge its oversight mandate.

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