The 5th edition of the People Dialogue Festival took place from 8th to 11th March 2023 at the National Museums of Kenya, Nairobi under the overarching theme, ‘Competition and Collaboration in Democratic Development’. The festival is run by the Centre for Multi-Party Democracy (CMD) Kenya, together with partners. It aims at providing a platform where people drawn from various backgrounds ‘converge to collectively explore practical ways of understanding and appreciating each other’s role in, and deepening their contribution to, social and sustainable development, climate justice, amplifying vital voices, freedom of expression and democracy’.
Katiba Institute joined other stakeholders including the Law Society of Kenya, Parliament, CREAW Kenya, ICJ Kenya, and political parties in leading discussions on the topic, ‘Kenya’s Constitutional Duels: Is it about power struggles among the elite?’ The discussions centred around the question of whether the political elites fully and truly represent the needs of the people and whether the Constitution is the problem.
KI’s Programs Manager, Patriciah Joseph who was a panellist in this discussion, provided an appraisal of Kenya’s constitutional history to demonstrate how contestations by the political elites have impacted the constitution-making and amendment processes. Political interference, she observed, was at play in the hyper-amendments of Kenya’s independence constitution, which resulted in recentralisation of presidential power, erosion of human rights, dissolution of regional governments, emasculated judiciary, elimination of opposition leaders which culminated in making Kenya a one-party state and stifling of human rights characterised by detentions without trial, among others.
The call for constitutional amendments, in the recent BBI amendments, was also reminiscent of previous changes to the Constitution that were motivated by contention for power by the political elite. In her view, the process towards the adoption of Kenya’s Constitution, had gradually expanded the space for increased citizen’s engagement, which disrupted the cycle of the elite interfering with the process of constitution-making and constitutional implementation. These was attributed to a coalescing of multiple efforts that sought to make the constitutional amendment process people driven, by entrenching public education and public participation into the process. However, this did not escape attempts by politicians to take over the process as demonstrated by changes to the draft Constitution that had been approved by the National Constitutional Conference (Bomas draft). The draft that was subjected to the 2005 referendum (Wako Draft) was different from the Bomas draft, having, among other things, had some of the checks against abuse of power diluted, and system of government and the devolution model. modified
‘[T]he interests of the political elites will always be at play in constitutional reforms and implementation. Therefore, incremental and sustained engagement of the people will be critical in guarding against capture of the reform agenda by politicians from what is envisaged by the spirit of the Constitution.’
The discussions emphasized the need for citizen-led demands to protect against erosion by the political elites of constitutional safeguards such as presidential term limits, protection of independent institutions (like the judiciary and commissions); principles of our electoral system; people’s sovereignty and constitutional amendment procedures as well as public participation and devolution among others. The question of compliance with the two-thirds gender principle through elections was also raised, with suggestions that this should be revisited during any review of the Constitution. The panellists emphasized that the question was not impossible to realize, rather what was needed was the political will to comply with the constitutional requirement, the requirement being part of the principles of Kenya’s electoral system, in addition to universal suffrage.
Furthermore, the discussants warned against a possible repeat of a BBI-like process, in view of the memo by President Ruto seeking introduction of amendments to the Constitution to be implemented through the parliamentary process. The representative of Justice and Legal Affairs Committee (JLAC) in attendance, maintained that the memo did not amount to a legislative proposal, despite acknowledging that its contents would be considered by the relevant House committees.
The proposed amendments in the memorandum of proposed amendments by president Ruto) include: amendments to the standing orders to allow participation of Cabinet Secretaries or Cabinet Assistant Secretaries in parliamentary proceedings, and enable them to respond to questions, and amendments to the Constitution on introduction of the office of leader of official opposition; ); introduction of a formula that will guide the computation of the gender ratio in the National Assembly to comply with 2/3 gender rule; and entrenching the National Government Constituency Development Fund, the Senate Oversight and National Government Affirmative Action Funds in the Constitution. The panellists cautioned against any attempts to circumvent the court’s decision in the BBI case, while emphasizing on the priority to implement the Constitution as opposed to initiation of amendments that was not motivated by the interests of the people.
Patriciah urged increased civic demand to ensure that the governance agenda was informed by the people’s interests to focus on the more critical aspects of constitutional implementation and priority citizen’s needs as opposed to amendments that were driven by interests of power for the political elite. This, she noted, would be achieved by making the Constitution a document that citizens identify with to govern all aspects of the people’s lives.