"You'd need a coup to amend the Constitution, I think so!

That very day when the new Constitution was passed in Parliament, nominated MP Musa Sirma, another MP Aden Keynan and still another one, a minister now, Moses Wetang’ula said, the document will divide this country. The PM and the President sat there, journalists watched and were all like ‘if anyone opposes this, then (s)he is not a friend of Kenya.’

The issues were on the initial reasons of why we went searching for the new Constitution. The MPs argued that it was because of two things: imperial presidency and unequal distribution of resources. Fine. Other issues must have come up.

But then, the President (Kibaki) and the Prime Minister (Raila Odinga) insisted that the House had done a good thing and if there were issues, they’d be addressed in the amendments to come soon after the referendum.

The language was, ratify it now, and let us change later. It makes me ask, what’s the procedure of amending the document?

Well, the 65 per cent (145 MPs) comes into play. Parliament failed to institute core amendments like the one giving prison warders, the national youth service and the Kenya Forest Service –all under the tag disciplined forces—the right to go on strike.

There’s been an argument that if these groups went on strike, there’d be no huge problem, “because anyway, the warders have been on strike before and nothing much happened.” That time they paralysed the judicial system as some even refused to bring suspects for trial. But now, this right is being entrenched in the Constitution. That ought to mean something.

Anyway, amending the document will be a herculean task. It will be hard to raise the two-thirds majority. We just saw when the 179 amendments to the draft were kiboshed because of lack of numbers!

Some people allude to the amendment by popular opinion, the one-million vote as a solution. Man (or woman), this is tough!

First collect the signatures, then draft the thing, send it to county governments, 47 of them, hope that 24 of these (more than half) will endorse it, bring it to Parliament, have it passed in both Houses (national assembly and senate), if it fails in either House, then take it to a referendum, another Sh7 billion or even Sh10 billion.

Damn! Democracy is expensive.

Then, in making it difficult to amend, there are some crucial clauses that have to be subjected to the referendum. So tell me, if we are to take each amendment –they keep citing the American Constitution being amended five times within the first six months, kindly let my ignorance slide on that example—say we manage to have two amendments between September 2010 and January 2011.

That’s two referenda. That’s Sh20 billion or thereabouts. In six months, one commission doing it? Can Treasury afford? Donors are funding it this time round; will they always be around to chip into the referenda to amend a document as soon as it is passed?

Well, a referendum is coming up, why not, gazette referendum rules, and introduce multiple questions? Or even enact a Referendum law?

While I agree that no constitution in this wide world can be perfect, taking cognizance of Kenya’s unique politics, I know this is a landmine. Right now, those championing for the document, have their eyes set on the next elections. If, pray, they are swept off the radar, behold I tell you solemnly, you will see them raising the issues I am raising.

Two, this document won’t be amended as soon as it is passed. I can give you a popular opinion that you are most likely to hear come September, the tentative effective date: “Let’s give it time, we have to focus on development and forget the new Constitution politics. Once we realize that it can’t work, then we’ll work on it.”

If Treasury says there’s no money? I mean, we’ve heard of roads, hospitals and even teachers and nurses not being employed because the ‘government has no adequate funds’, so you expect it to be different when it comes to a referendum to amend a single clause? I don’t.

So a fellow reporter asked me, “why are you pessimistic?” I told him, if everyone says something is good, you have to confirm that. I am surprised, he’s not even thought about the ‘worst-case scenario’, yet that’s what the public’s watchdog ought to do. If you move in this ‘frenzy’ what will you say when the worst comes to the worst like it did in December 2007? Hope you won’t splash the ‘save our beloved country’ headlines again!

While I do agree that there are many good things in the proposed law, I think that, on devolution, with the 47 counties, Kenyans got a raw deal. Even the 15 percent allocation from the national government and the equalization fund for the first 20 years are not enough.

Let’s talk about that tomorrow.


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