Revising Kenya’s Constitution, 2010; The Devils Alternative?

It is no secret to Kenyans that certain sections of the Constitution, 2010 require amendment.  This realization came about soon after its promulgation and as witnessed through the emergence of a number of weaknesses in the structure of the law, internal contradictions in the text, and even outright impossibility in the implementation of certain provisions. The question that was rife for most was whether it was a good idea to attempt to touch any of the provisions of the Constitution, 2010 so soon after its promulgation.  For some it was considered an abomination and for others it was considered a necessity.  This article explores the considerations that were brought to bear in the debate of whether ‘to amend or not to amend’.

To illustrate but one of the areas where there emerged clear contradictions in terms of the text of the Constitution as regards the practicality of its implementation, are aspects of Article 27(8) that provides for the development and application of affirmative action measures in appointive as well as elective positions in Kenya.  To be specific, the Constitution created a Supreme Court for which appointments were made in 2011 by an interviewing panel, the newly created Judicial Service Commission (JSC), which settled on two females and five malesfor appointment to the Supreme Court out of the available seven positions.  This move was opposed by several organizations working in the area of gender equality and the thrust of their arguments was that the action of the JSC flouted the provisions of the revolutionary Article 27(8) that states, “In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

The above issue was litigated at the High Court in the case of Federation of Women Lawyers Kenya (FIDA-K) and 5 others V Attorney General and Another whereupon the Court ruled that Article 27(8) ought to be construed as intending the achievement of the not more than two-thirds criteria in appointive positions be progressive rather than immediate.  According to the Judges, the Constitution could not have been designed to achieve the impossible, particularly where the ‘raw material’ does not exist.  They argued that the most significant aspect requiring attention was whether the government could be adjudged as having taken the necessary legislative and other measures to ensure that in the future there would be a sufficient pool of talent from which qualified judges worthy of appointment to the Supreme Court could be drawn.  In other words, as things currently stood, there did not exist a satisfactory pool of female judges worthy of appointment to the Supreme Court when viewed against the relevant values sought for this position.  The Court of Appeal confirmed the High Court’s position at the time.  Interestingly, the very same trend was repeated in 2017 by the JSC in its recent appointments aimed at fully constituting the Supreme Court given the retirement of the then Chief Justice, Willy Mutunga and the involuntary exit of Justice Phillip Tunoi.

The essence of the above ruling as regards appointive positions was repeated by the Supreme Court in its majority ruling on the issue of elective positions.  The Attorney General had sought an advisory opinion regarding the implementation of the provisions of Article 27(8) in relation to the impending elections slated for March 2013.  The advisory opinion was sought urgently because of the clear terms in which Article 81(b) is couched in relation to the principles defining Kenya’s electoral system.  It states, “The electoral system shall comply with the following principles–(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;”Again, the Court found that the implementation of Article 81(b) in the context of the 2013 General Elections would be practically impossible but gave the State a timeline of up to 27 August 2015 to put in place legislative measures to ensure the implementation of the same going forward.  The deadline of August 2015 was extended by Parliament for a year but as at September 2016, no law has yet been passed by Parliament in this regard although a number of attempts have been made, though failed.

The issues pertaining to the implementation of Article 27(8) above are replicated in other areas including the interpretation and implementation of Chapter Six of the Constitution with respect to Leadership and Integrity; the practical application of Article 10 of the Constitution with respect to National Values and Principles of Governance; the practical application of socio-economic rights that were clearly identified in the Constitution for progressive realization, but no regulation provided as to the pace or leverage that can be exerted on the State to ensure that it is taking all measures possible to implement the same. These are just but some of the issues that have caused concern to Kenyans and about which there has been a hue and cry about from various quarters including the three arms of government and civil society organizations.  Notably, in all cases, there have been voices strongly opposed to the reopening of the Constitution for amendment so soon after its promulgation.  These voices have been in constant opposition to the other voices that have called for a measured amendment of the Constitution to make it workable.

Looking at the arguments proffered by the protagonists for the amendment or lack thereof of the Constitution of Kenya, 2010, one finds justifiable reasons in both.  Those vehemently against amendment are compelled by the history that precedes the Constitution, 2010 whereby the Independence Constitution was amended severally during the course of its tenure in such a way as to obviate the fundamentals of the structure that had been created initially. Indeed features such as the bicameral parliament were done away with as well as the security of tenure for a number of key constitutional office holders.  Eventually multi-partyism was also formally removed and replaced by the single party system that was only reversed again in 1991.  Interestingly, despite the return to multi-partyism, no concomitant changes were made to the Constitution to accommodate the opposition as legitimate players in national politics.  No doubt lawyers, historians, sociologists, anthropologists and ethnographers would agree that the post-independence constitutional amendments did more harm to Kenya than good due to the haphazard nature in which they were made and the absence of a public good underlining the majority of them.  In fact, the deleterious consequences of those amendments continue to reverberate to date and thus the great hesitation by those against amending the Constitution, 2010 just yet.

Those in support of amending the Constitution, 2010 argue that they do so with good reason.  Their views are best captured by the philosophical approach that advocates constitutions as living documents.  In other words, the constitution ought not to be rigid and fixed for all time such as to prevent the necessary amendments that must take place from time to time in response to the societal dynamics of the day. This approach allows for the progressive change of the constitution to reflect the needs of society thus allowing society to grow, advance, and progress without unnecessary let or hindrance.  In the case of the implementation of Article 27(8), the failure to amend the Constitution for fear of the commencement of a reckless trend of annulling the gains made in the Constitution,through the passing of amendments that are self-seeking, is on the other hand the denial of the enjoyment of legitimate rights that are provided for to a section of the population.  However, arguments may abound as to whether an entire society ought to take the ‘dangerous’ option of amendment in the quest merely to satisfy a section of society.

Ultimately, in between the legitimate fears of amendment, and the anxieties at the failure to implement the Constitution fully with respect to the various grey areas that definitely require clarification to enable further action by state and non-state actors, lies an abyss of uncertainty.  This uncertainty calls for urgent action because it negates one of the fundamental purposes of law, which is regulation, and regulation with predictability at that!  History has shown that such gaps arising from such uncertainties can be exploited by persons or groups that are at variance with sections of the society or the entire society for negative purposes.  For this reason, there is need that uncertainties are dealt with through orderly means such as are provided for in formal law amendment processes rather through unstructured reactionary means that cause divisions and even the fundamental collapse of society.  No doubt, our history calls for us to be very cautious in any approach to constitutional review, however, this cannot and should not be a bar to the resolution of issues for which there can be reasonable anticipation that if not addressed squarely, and in good time, can fester and erupt in ways that are unmanageable by the State.