CHAPTER 26 CONSTITUTION MAKING, AMENDMENT, CONSTRUCTION, TRANSLATION, INTERPRETATION, AND IMPLEMENTATION IN AND AFRICA 2010: INTERESTS, PROCESS AND OUTCOMES

This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Constitution Making, Amendment, Construction, Translation, Interpretation, and Implementation in Kenya and Africa 2010: Interests, Process and Outcomes,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, Chapter 22.

26.1 Introduction and typology on amending the 2010 This Chapter uses and Afro-Kenyanist typology to address three questions on amending the Constitution of Kenya 2010 post 2017. First, whether the Constitution has addressed the issues, challenges and aspirations it was intended to address. A major issue is the interests of the people to which the Constitution is principally directed, and that of leading politicians.

President ’s interests appear to revolve around his securing a presidential legacy in the next four years1 and protecting the interests of his primary constituents. He also has to balance the issues that have emerged after the “handshake” with Raila Odinga on March 9, 2018. Raila Odinga has an interest in cementing his own legacy as a constitutional democrat and a unifying factor in Kenya, Africa and beyond by championing good governance and an all- inclusive Government. William Ruto and Gideon Moi both have ambition to contest or determine the next presidency. The second question is whether the Constitution is ripe for amendments and which are necessary or desirable. The third relates to the appropriate process for amending the Constitution such as roles of the people and civic education. Significantly, the “Yes” and “No” referendum campaigns leading to the adoption of the Constitution acknowledged that about “20 per cent” of the provisions of the (Proposed) Constitution of Kenya 2010 (PCK) were contentious.2 The “Yes” campaign led by President and Prime Minister Odinga argued that the Constitution would be amended after adoption, while the “No” campaign led by the then MP William Ruto supported tacitly by then Deputy Prime Minister Uhuru Kenyatta argued that it should be amended before the referendum.3

1 He expressed this interest through the launch of the “Big four” agenda which entails: manufacturing, affordable housing, universal health coverage, and food security. See The President’s Delivery Unit (2018) “Big Four,” at https:big4.preisdent.go.ke (accessed 12/4/2019).

3 See Walter Menya (2018) “'No' camp concedes referendum defeat,” Daily Nation, Nairobi, 5/8/2010, at https://www.nation.co.ke/Kenya-Referendum/-/926046/971494/-/n98rgpz/-/index.html (accessed 26/7/2018).

1 A majority of the Kenyans voted for adoption of the Constitution. These contentious provisions and emerging issues should now be addressed especially in the light of the experience of about nine years. The amendment should address appropriate challenges identified both before and after adoption. Members of various civil society organisations (CSOs), scholars, representatives of religious organisations and gender lobby groups have identified contentious provisions which need to be reviewed to realize the peoples’ intention before and after 2010. What was intended in adopting the Constitution may be discerned through a three-pronged methodology. First, textual analysis of the Preamble to the Constitution, Article 1, Article 10 and the general values and principles that undergird every chapter. This includes provisions on the arms of Government and the key operative rules, clauses or provisions on sovereignty, electoral justice, socio-economic justice, and governance. Second, reviewing the history and practice including the preparatory materials or record of transactions (travaux preparatoires) associated with the final drafting and adoption or promulgation under the guidance of the Committee of Experts (COE). Equally important is the earlier work by the Constitution of Kenya Review Commission (CKRC).4 Third, the subsequent practice and emerging usage of the Constitution. These include interpretation by the courts and tribunals, interpretation by the legislature, especially through legislation, motions and petitions. Also crucial is interpretation by the executive and administrative bureaucracy through administrative actions or omissions as well as proposals for constitutional, statutory and regulatory reform. Interpretation by the people in their daily lives, and through direct actions, activism, petitions, demonstration and picketing should be given serious consideration. Various proposals for constitutional amendment or reform since 2010 should also be considered. Debates on amending the Constitution re-emerged in earnest in 2018 following the handshake. The handshake and the need to unite Kenyans through the Building Bridges Initiative (BBI)5 has presented an opportunity for Kenyans to review the historical, continuing and persistent challenges and aspirations regarding elections, socio-economic justice and good governance. The nine key handshake issues are ethnic antagonism and competition, lack of national ethos, ethnic inclusivity, devolution, divisive elections, safety and security, corruption, shared prosperity, and responsibilities and rights.6 In light of these, discussions and strategies on constitutional amendment should seek to address at least three governance challenges and aspirations:

4 Most of the CKRC work has been archived by the Katiba Institute , at http://www.katibainstitute.org/Archives/ (accessed 17/7/2018).

5 This entails a 14-member committee that was officially gazetted and given one year to submit a comprehensive report. 6 Building Bridges Initiative Memorandum of Understanding. https://businesstoday.co.ke/wp- content/uploads/2018/03/Building-bridges-to-a-new-Kenyan-nation.pdf According to many, inclusivity entails the incorporation of all tribes in governance so as to give different communities opportunity to participate in the governance of the nation.

2 (a)socio-economic imbalance and injustice whereby certain tribes or communities and regions have been marginalised economically and socially since independence in 1963; (b) address the recurrent electoral injustices; and (c) facilitate and encourage good governance and human rights, the rule of law, and due process while addressing tribalism, corruption or looting and incompetence. Central to all this are Kenyans, not special interest groups. Debates should focus on key constitutional rules, values and principles, even as we seek reform. Articles 1(1), (2) and Article 4 o f the Constitution, among others, provide for sovereignty. Article 1 (1) states that all sovereign power belongs to the people.to be exercised only in accordance with the Constitution. Thus sovereignty, democracy, governance structure and administrative justice must be the centre of constitutional amendment 26.2 Challenges to the Constitution of Kenya Although the Constitution was an appropriate model for transforming Kenya’s elections and governance, the Kibaki and Kenyatta administrations have undermined constitutional gains, by manipulating or “amending” its key provisions. The Constitution promises Kenyans freedom, dignity, harmony, social justice, equality, and participation. For instance, the Constitution has an elaborate, extensive and balanced Bill of Rights (Chapter 4); a structurally balanced devolution (Chapter 11, Articles 174-191) inclusion of tribes, regions and gender, and leadership and integrity (Chapter Six: Articles 73-80). The challenge to implementation can be summarised under three. First, in nine years, major constitutional organs and commissions have continued to face intimidation hindering the Constitution’s full implementation. These hindrances largely originate from political quarters with key political figures seeking to secure their individual interests at every step of constitutional implementation. For example, the National Assembly’s Budget and Appropriations Committee slashed the budget of the Salaries and Remuneration Commission (SRC) for the 2014/2015 financial year by KShs 50 million from the 170 million originally requested as the Judiciary lost KES 500 million planned for construction of court buildings.7

Obstacles have been placed by executive authorities, at different levels, in performing their task towards the full implementation of the Constitution, including what are meant to be independent like the judiciary and independent commissions.

From the very beginning there was disregard, by high officers, of the Commission for the Implementation of the Constitution (CIC).

The CIC at times had to litigate key implementation issues. For instance, it the CIC faced problems on the enactment of the Contingencies Fund Act 2013 and County Emergency Funds

7 Edwin Mutai (2014) “House budget team wants economic audit of Constitution,” Business Daily, Nairobi, 25/2/2014, at http://www.businessdailyafrica.com/House-team-orders-economic-audit-of-Constitution/- /539546/2222074/-/qv7o0bz/-/index.html (accessed 12/7/18). In 2018, the Judiciary was allocated only KShs14.5 billion, out of a budget of KShs31.2 billion. Only Kshs50 million was allocated for development. See Sam Kiplagat (2018) “Budget cuts will cripple Judiciary, warns Maraga,” Daily Nation, Nairobi, 25/7/2018, at https://www.nation.co.ke/news/Budget-cuts-will-cripple-Judiciary--warns-David-Maraga/1056-4679948- ingt01z/index.html (accessed 26/7/2018).

3 Act, 2011 and the National Government Loans Guarantee Act, 2011.8 So frustrated, the CIC became complicit and even recommended that its term should not be extended, though permitted by the Constitution.9

State authorities must bear criticism for not (sufficiently) enabling Kenyans to understand the Constitution and their rights under it. Disregard of other constitutional institutions such as the Judiciary have been witnessed on numerous occasions. President Kenyatta tried to intimidate the Judiciary including especially in relation to the presidential election process and outcomes.10 Moreover, the Speaker of the National Assembly, Justin Muturi, dismissed an advisory opinion of the Supreme Court on the Division of Revenue Bill.11 The Senate also ignored court orders barring them from debating impeachment of Martin Wambora, and Kivutha Kibwana, governors of Embu and Makueni Counties, respectively and Bernard Kiala, the Machakos County Deputy Governor.12 Another example is the unlawful detention and deportation of Miguna Miguna by Cabinet Secretary Matiangi and the Immigration Department.13

The second challenge is lack of civic education on the Constitution, which makes it difficult for most people to identify or confront its violations. The Executive and relevant agencies have not provided civic education on socio-economic rights, justice, and the relationship between the National Government and the 47 County Governments. The Judiciary has sometimes, also been compliant in non-implementation of the Constitution in some of the foregoing and related matters.14

Third, there has been continuing impunity and application of double standards in the anti- corruption struggle and the enforcement of human rights under the Constitution. For instance, unconstitutional investigations, arrests, prosecutions, bail or bond terms, as well as lifestyle audit

8 Commission for the Implementation of the Constitution v. Attorney General & Another [2013] eKLR (to protect CIC’s own opportunity to consider an implementation Bill – which was unsuccessful).

9 See Ben Sihanya (2018) “Constitutional commissions and independent offices in Kenya: Experiences, challenges and opportunities,” forthcoming as Chapter 8 in Sihanya, Constitutional Democracy and Administrative Law in Kenya and Africa, IL & SM.

10 Ben Sihanya (2018) “Presidential election and transition in 2017 and beyond: electoral justice, popular sovereignty and the secession debate,” forthcoming as Chapter 14 in Sihanya, Ibid; Ben Sihanya (2019) “Kenya’s presidential, political, governance and constitutional crises and reform post 2017,” forthcoming Sihanya, iBID

11 Alphonce Shiundu (2014) “Justin Muturi rules Charles Nyachae out of order on Judiciary's mandate,” The Standard, Nairobi, 24/10/2014, at https://www.standardmedia.co.ke/article/2000139225/justin-muturi-rules-charles- nyachae-out-of-order-on-judiciary-s-mandate (accessed 2/8/2018).

12 Speaker of the Senate & Another v. Hon. Attorney-General & Another & 3 Others [2013] eKLR; Martin Nyaga Wambora & 4 Others v. Speaker of the Senate & 6 others [2014] eKLR.

13 Paul Ogemba (2018) “CS Matiang’i, Boinnet and Kihalangwa in trouble for disobeying court orders,” The Standard, Nairobi, 28/3/2018, at https://www.standardmedia.co.ke/article/2001274850/cs-matiang-i-boinnet-and- kihalangwa-in-trouble-for-disobeying-court-orders (accessed 17/7/2018).

14 George Kegoro (2018) “Maraga must shun appeasement, defend independence of Judiciary,” Sunday Standard, Nairobi, 29/7/2018, at 16.

4 of state officials has been promoted by President Kenyatta. This is mainly in response to public complaints on the rising cases of looting, corruption and impunity. These appeared to target selected Cabinet Secretaries, Principal Secretaries, some parastatal heads, procurement officers and accountants or politicians.15

Moreover, the life style audit was not done within the framework of Chapter 6 of the Constitution on leadership and integrity.16 Most of the “anti-corruption” measures have been undertaken in a manner that fails to comply with fair administrative action, natural justice, due process and the rule of law under the Constitution.

There is no indication that senior Government officials including the President and Deputy President have been audited even though they reportedly claimed the process and accountability generally would begin with them.

These and other challenges have negatively affected the realization of the fruits of the Constitution of Kenya 2010. As these challenges persist, proposals have been advanced to amend the Constitution. 26.3 Proposed issues and aspects of amending the Constitution Proposals to amend the Constitution have been introduced in two main phases: before and after the 2017 general elections. None has yet been enacted. 26.3.1 The 2010-2017 Period: what to amend in the Constitution Between 2010 and 2017, at least five constitutional amendment proposals were made by the key players in Kenya’s elections, governance and political economy generally. First, an amendment to Article 81(b) on requiring at least one third of either gender in elective public office as a rule, principle or value. Second, Article 101 on the date of general elections. Third, Article 260 to remove members of the National Assembly, Senators, Judges and Magistrates from the list of state officers. Fourth, Article 203 on county revenue. Fifth, Articles 110, 111 and 112 on roles of Senators; among others.17 Proposals in the 2013-2017 period are discussed briefly below. 26.3.2 Governors’ pesa mashinani and the Okoa Kenya initiative on constitutional amendment

15 Geoffrey Mosoku and Jacob Ngetich (2018) “Revealed: Details of secret lifestyle audit,” The Standard, Nairobi, 13/7/2018). Cf Standard Team (2018) “We’re pawns, officer claims after 3-hour vetting ordeal,” The Standard, Nairobi, 6/8/2018, at https://www.standardmedia.co.ke/article/2001290828/we-re-pawns-officer-claims-after-3- hour-vetting-ordeal (accessed 6/8/2018).

16 See Art 73, 75, 76 and 77 of the Constitution (on responsibilities, conduct, financial probity, and restrictions of state officers – chapter 6). Cf Arts 33, 34 and 35 (on freedom of information, freedom of the media and access to information). Reportedly, a secret multi-agency team that reports directly to the President was formed in July 2018 and its secret operations were clearly not within the provisions of Chapter Six of the Constitution, Ibid.

17 See Willis Otieno (2014) “Proposed amendments to the Constitution since 2010,” at http://www.fes- kenya.org/media/publications/Proposed%20Amendments%20to%20the%20Constitution%20of%20Kenya%202010 %20-%20Willis%20Evans%20Otieno.pdf (accessed 20/7/2018).

5 The Pesa Mashinani (money at the grassroots) campaign was initiated by governors under the umbrella of the Council of Governors (COG) that pushed for increasing revenue to county governments from at least 15 percent to at least 45 percent of the national revenue. This was also part of the Okoa (save) Kenya Movement initiated by the principals of the then Coalition for Reform and Democracy (CORD).18 The other broad proposals were strengthening the (NLC), electoral reforms, provisions for ethnic inclusivity and diversity, and strengthening public institutions.19 The strategy used was the popular initiative and referendum under Article 257. Debate continues on the economic viability of some Kenyan counties. Some scholars, commentators, pundits, politicians and activists have argued that (some) counties are not economically viable and that they foster ethnicity.20 My argument is that economic viability and ethnic diversity are by products of inequitable electoral and socio-economic processes and system fostered by the Presidency at the national level. These can be corrected through constitutional reforms, amendment and implementation. The Pesa Mashinani campaign was resisted under President Kenyatta and Deputy President Ruto’s leadership. The Commission for the Implementation of the Constitution also dismissed Okoa Kenya arguing that Kenya did not need a referendum at that time.21 Some have been citing cost. I also disagree with those who cite costs of the referendum. I argue that constitutional democracy may be expensive but far cheaper than civilian dictatorship, dominant tribal or party rule, military rule or anarchy. I further argued that if the Constitution was effectively implemented and systems working as they should, devolution and the Constitution generally would generate finances.22 Similarly numerous attacks on the Constitution at the time included the passing by the National Assembly and subsequent assent by the President of the Security Laws (Amendment) Bill 2014.23 The Bill proposed, inter alia, to impose restrictions on media reporting of security operations in Kenya at a time when terror attacks were on the rise.24 In Coalition for Reform

18 The principals were: Raila Odinga, Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula.

19 See The Constitution of Kenya 2010 (Amendment Bill, 2015 (Okoa Kenya Bill) dated 23/4/2015.

20 Makau Mutua (2018) “Most counties are economically unviable and foster ethnicity,” Sunday Standard, 29/7/18, at 15. Prof Makau Mutua’s argument and proposals here are progressive. Most naysayers don’t propose reforms.

21 Stanley Ongwae (2014) “Let’s implement Constitution first, CIC's Charles Nyachae pleads,” Standard Digital News, Nairobi, 27/7/2014, at http://www.standardmedia.co.ke/article/2000129627/let-s-implement-constitution-first- nyachae-pleads (accessed 25/1/2015).

22 See Justus Wanga (2014), ibid.

23 Martin Kinyanjui (2014) “President Uhuru Kenyatta signs new security laws,” Daily Nation, Nairobi, 19/12/2014, at http://www.nation.co.ke/news/Uhuru-signs-security-law/-/1056/2562430/-/uv037ez/-/index.html (accessed 27/7/2018). These amendments were severely criticised by civil society organisations and told Parliament as such, with limited impact.

6 and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others,25 the nullified eight contentious sections of the Security Laws Amendment Act that infringed the right to fair hearing (Article 50), fair trial (Article 51), and media freedom (Article 34).

26.3.3 Punda Amechoka Punguza Mzigo proposals on constitutional amendment The Punda Amechoka Punguza Mzigo (the donkey is tired, relieve the burden) was a move by the Jubilee Party Gatundu South MP Moses Kuria. His proposals included scrapping the Senate, women representatives and nominated members of county assemblies, and the merging of the 47 counties to reduce the number to 18.26 After reportedly collecting 300, 000 signatures, this push subsided when the 2017 general election campaigns approached and its fate was unclear. This was clearly a cynical and mischievous move to counteract or manipulate progressive reforms. 26.4 Post 2017 Constitutional amendment proposals Since 2018, there have been at least six proposals by different Members of Parliament and one by civil society organisations to amend the Constitution of Kenya,2010. First, the Constitution of Kenya (Amendment) Bill, 2018, No. 4 of 2018 by Aden Duale seeking to give effect to the one-third gender rule principle through the creation of special seats on the model of the top-up seats for county assemblies. Second, the Constitution of Kenya (Amendment) Bill, 2018, No. 5 of 2018, by Chris Wamalwa, that seeks to push the general elections day from the second Tuesday of every fifth August to the third Monday in December of every election year. Third, Kassait Kamket, Tiaty MP also attempted to introduce a new Bill that sought to amend the Constitution by shifting Kenya to a parliamentary system. It proposed a Prime Minister as head of Government coming from Parliament, and a more ceremonial President.27 Fourth, the civil society organisations, including the Better Kenya Team, have also proposed amendments to increase revenue allocation to the counties from 15 to 40 percent. Fifth, there has also been a proposal to let the National Government have direct control over Nairobi which is a county under the Constitution.28 This proposed model for Nairobi may have an ethnic interest to

24 See section 12 of the Act.

25 Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others [2015] eKLR.

26 Fred Kibor (2016) “MP Kuria collects over 300,000 signatures in referendum push,” The Standard, Nairobi, 11/1/2016, at https://www.standardmedia.co.ke/article/2000187710/mp-kuria-collects-over-300-000-signatures-in- referendum-push (accessed 13/7/2018). Would Kuria therefore support the Raila-Bomas Draft view that Kenya needs 14-16 regions, discussed below?

27 Ibrahim Oruko (2018) “William Kamket: The first-time MP behind Bill on presidency,” Daily Nation, Nairobi, 28/2/2018, at https://www.nation.co.ke/news/MP-behind-Bill-on-presidency/1056-4322398-8gpkukz/index.html (accessed 17/7/2018). See Chapter ??

7 control Nairobi. Nairobi is unlike the situation in other countries which have a special constitutional executive and administrative arrangement for the capital city, for instance Washington DC (District of Columbia) in the US and Abuja Federal Capital Territory in Nigeria. Sixth, the main constitutional amendments or reforms fronted but not formally presented before Parliament came after the famous handshake in 2018. They largely seek to transform the system and structure of government at the national level from an executive presidency to a parliamentary system. This is principally by Raila Odinga and the Orange Democratic Movement (ODM) and the National Super Alliance (NASA) leaders including, at least two former Vice Presidents, at one time, Kalonzo Musyoka and Musalia Mudavadi. Some of the changes envisaged include a shift from two levels of Government (the national and the county) to three levels, the third being 14 to 16 regions between the other two levels. One proposal is that the regions would consolidate the legislative process at that level. Then the counties would remain administrative units under the regions.29 Counties have themselves recognised the need to work together hence the emergence of the following six regional six regional economic blocs: Lake Region Economic Bloc,30 the Frontier Counties Development Council, 31 North Rift Economic Bloc,32 Jumuia ya Kaunti za Pwani,33 South Eastern Kenya Economic Bloc,34 and the Mt. Kenya and Aberdares Region Economic Bloc.35. Yet merger will require deeper consultation and public participation before, during and after the process. Some County Governors have also reportedly proposed constitutional amendments to remove the two-term limit for Governors (Art 180(7). Governors have also sought an amendment to secure immunity or privilege from prosecution because of their positions. They have problematically argued that Governors, just like the President, are heads of Government.36

28 Kembi Gitura (2018) “Place Capital City under national government,” The Star, Nairobi, 5/5/2018, at https://www.the-star.co.ke/news/2018/05/05/place-capital-city-under-national-government_c1753008 (accessed 18/7/2018).

29 Raila Odinga’s speech in Kakamega during the Fifth Devolution Conference, 2018.

30 These are Bomet, Bungoma, Busia, Homa Bay, Kakamega, Kericho, Kisii, Kisumu, Migori, Nandi, Nyamira, Siaya, Trans Nzoia and Vihiga counties. Maurice Malal (2014) “Lake region economic bloc to start bank, needs Sh2.6bn for development, The Star, Nairobi, 14/3/2018).

31 These are Lamu, Turkana, Tana River, Isiolo, Marsabit, Garissa, Mandera and Wajir.

32 These are Uasin Gishu, Trans-Nzoia, Nandi, Elgeyo Marakwet, West Pokot, Baringo, Samburu and Turkana

33 These are Tana River, Taita Taveta, Lamu, Kilifi, Kwale and Mombasa

34 These are Kitui, Machakos and Makueni

35 These are Nyeri, Nyandarua, Meru, Tharaka Nithi, Embu, Kirinyaga, Murang’a, Laikipia, Nakuru and Kiambu. See Ministry of Devolution and Asals, at http://www.devolutionasals.go.ke/regional-blocks/ (accessed 13/6/19).

36 Immende Benjamin (2018) “We need immunity just like the President, say governors,” The Star, Nairobi, https://www.the-star.co.ke/news/2018/07/10/we-need-immunity-just-like-the-president-say-governors_c1784447 (accessed 3/8/2018)..

8 The pro-amendment pact is also seeking to create the positions of Prime Minister and Deputy Prime Minister, though not in a fully parliamentary system. Proposals have also been made that power should be shared between the Prime Minister and the President, each with junior colleagues. What is yet to be teased out is how power would be shared at the top of the executive. This is crucial to ensure real power sharing based on portfolio balance, including, checks and balances to control tendencies towards the imperial presidency. The hybrid or semi-presidential system that Kenya had in 2008-2013 is being considered. Clearly, executive power sharing is one of the key issues in tribal inclusion, socio-economic and electoral justice, and good governance. Some politicians like Ruto misinterpret the argument by saying the amendment is only to create jobs for the rich few, and to accommodate the leaders of leading political parties within the national executive rather than jobs for the people. Remarkably, some have observed that Kenyatta and his supporters have generally been ambivalent on the need for constitutional amendment but may take advantage of the process and seek either a third term presidency or a prime ministerial position should amendment get traction. Some argue that Senator Gideon Moi of Baringo County is of a strategy to retain influence at the top of the executive power structure of Government as part of inclusion. 26.5 Reviewing constitutional executive powers and structure in Kenya In the ongoing quest for further constitutional changes in Kenya, the focus is particularly on the executive and the presidency. Executive powers affect the people more directly and frequently in Kenya and Africa.

As I have stated elsewhere, the role of the presidency in Kenya has animated and dominated popular and political discourses on constitution making, constitutional processes, and constitutional review and implementation, as well as political processes, since independence in 1963.37 Presidential executive power permeates all the arms and organs of Government and the entire public sector.

Significantly, the authority bestowed upon the President in Kenya is still very strong. My preference is that executive power should be shared at the top. The parliamentary model of 1961- 1963 showed that power sharing at the top is crucial. The 2008-2013 power sharing model was also remarkable. And the experience from 2011 to 2019 in Kenya demonstrates that if power is not checked properly at the top it is liable to abuse and constitutional implementation will be a façade. Hence the growing ethnic exclusion, looting and corruption; indebtedness, and poor service delivery at national and county government levels. To be sure, the heads of two arms of Government share some executive, administrative and judicial powers. The powers of the President are substantial and centralized. They should be shared. The DP and CSs still lack an independent power base and are often countermanded by the President, leading to his violating the Constitution. This is despite the fact that Article

37 Ben Sihanya (2010) “The Presidency and Public Authority in Kenya’s new Constitutional Order,” Constitution Working Paper Series No 2, Society for International Development, at http://sidint.net/docs/WP2.pdf (accessed 14/7/2018).

9 131(1)(a) and (b) that makes him the Head of State and Government do not grant him plenary executive authority over Cabinet Secretaries, and Principal Secretaries, who have substantial independent constitutional and statutory powers.38 And Governors too have their own authority. Thus the Constitution is ripe for amendment. The “handshake” between Odinga and Kenyatta may present an opportunity to correct some of the most persistent governance challenges which mainly arise from concentration of power in one office in the executive. The other aspects that need to be addressed include presidential electoral justice, tribal and gender inclusivity in governance, integrity and anti-corruption, socio-economic equity and justice, and sustained good governance. In the light of the arguments advanced above on the challenges and issues on the Constitution of Kenya 2010, a pure presidential system in Kenya is not appropriate. The Bomas Draft Ion the cohabitation or power sharing between the President and Prime Minister provides a useful model that can be adapted. Thus a hybrid system is appropriate for Kenya. I quote a comment by Prof Jill Cottrell Ghai:

“A true hybrid, in what is usually called a semi-presidential system is one that gives to the President (however elected and it could be popularly) some genuine powers of government so that the executive powers are divided. South Africa (and Kenya until 2008) are a different sort of hybrid. A real parliamentary system is one with a largely formal head of state (monarch or president) with very little in the way of governmental powers though there might be quite a lot of formal powers. This is the model in almost all of Europe, Canada, Australia, New Zealand, India, Pakistan, the Caribbean and much of the Pacific.”39 A hybrid system would allow greater inclusion and hence popular representation and participation in governance. And this is also because most Kenyan people are underrepresented at the top of the executive but most Kenyans are over represented in some legislative organs which so far have been used as executive rubber stamp or corruption channels.40 In supporting a parliamentary-prime ministerial system, Prof Yash Ghai opines that constitutional amendments should be about

“the people and their sovereignty—and their legitimate expectations of national unity, the rule of law, democracy, participation, human rights scrupulously observed and promoted, protection of the marginalised (including women), and government which is transparent and has complete integrity.”41 38 See also Article 130 of the Constitution which provides that “The national executive of the Republic comprises the President, the Deputy President, and the rest of the Cabinet.

39 Personal communication through an earlier draft of this paper with Prof Jill Cottrell Ghai and Prof Yash Ghai, Nairobi, March 2019.

40 See Ibrahim Oruko (2018) “MPs bribed to throw out report on bad sugar,” Daily Nation, Nairobi, 11/8/2018, at https://www.nation.co.ke/news/Fury-over-MPs-linked-to-bribes-in-sugar-report/1056-4707480-ky51mdz/index.html (accessed 14/8/2018).

41 Yash Ghai (2018) “Why I support calls to amend the Constitution,” The Standard, Nairobi, 29/4/2018, at 22.

10 The process or approaches to be taken in constitutional amendment in Kenya should thus reflect the concerns raised by stakeholders including the people, leaders of political formations, politicians, civil society organisations, academia, and experts in constitution making. 26.6 Process, methodology and approaches to Constitutional Amendment in Kenya beyond 2017 Constitutional text and intention have and can be positive and progressive. The challenge has been guaranteeing implementation and enforcement under the rule of law. The following “people’s” strategies are crucial but have not proved sufficient: petitions, demonstrations, protests, picketing, other forms of alternative dispute resolution42 and traditional dispute resolution,43 public interest lawyering, litigation, impeachment and election. As Kenya embraces the formal amendment process, individual political ambitions should not control the discussions on constitutional amendment or reforms. And as Yash Ghai opines in one of his newspaper articles, politicians should not take charge of the constitutional amendment process. The people and experts must secure or be given the chance to meaningfully participate and lead the process.44 The Grand Coalition Government, media and civil society organisations, including NGOs performed reasonably well in facilitating a people-centred process in the adoption of the Proposed Constitution of Kenya (PCK) 2010 and its promulgation on 4/8/2010 and 27/8/2010, respectively. The main role of the people if the proposed referendum in Kenya happens will mainly be to participate in the debates and decision making by voting. All the relevant Government agencies need to put in place measures to ensure the interests and will of the people are realized. There is also an important role for the socio-economic and political elite in the amendment process. Political leaders, lawyers, civil society activists, intellectuals and academics should play a key role in cementing constitutional democracy in Kenya through active participation in review processes. Already, politicians are debating amendment of the Constitution in political circles. Members of Parliament who have a key constitutional role in the constitutional review process already have draft bills before them for review. Experts in constitutional democracy including scholars, academics, judges, magistrates, lawyers, and relevant civil society practitioners should secure or be given a central role in the crucial process.

42 The constitutional and juridical (ADR) measures include mediation and arbitration.

43 Traditional dispute resolution (TDR) is mentioned in Article 159(2)(c). However, TDR has not been elaborated through legislation, policy or administrative reforms. Cf Omoniyi Adewoye (1977) The Judicial System of Nigeria 1854-1954, Longman, London, cited in Bankole Sodipu (2017) Copyright Law: Principle, Practice and Procedure, Swan Publishing, Lagos, Nigeria. But there is a current Judiciary Working Group looking at it and other ADR mechanisms.

44 Yash Ghai (2018) “People’s mandate: Why I don’t trust politicians to amend the law,” Standard Digital News, Nairobi, 27/1/2018, at https://www.standardmedia.co.ke/article/2001267414/people-s-mandate-why-i-don-t-trust- politicians-to-amend-the-law (accessed 20/3/2019).

11 Kenya has numerous lessons to learn from previous experiences. The Kenyan Constitution making process in the 2000-2010 period illustrates that Constitution making and amendment can have either unifying or divisive consequences or both.45 Significantly, at the peak of Kenya’s constitutional review process, different actors joined to lobby for change especially after the post-election violence of 2007/8. During this period, some leading actors in the police and security reform sector decided to form a coalition which later developed into the Usalama Reforms Forum.46 Other civil society organisations also played a fundamental role in advocating police reforms during the constitutional review process.47

The Constitution amendment or making process is fundamentally political. It is about individuals contesting or negotiating power. It is about interests, principles, policies, programmes, projects, strategies, and tactics which can include obstruction and sabotage.48 It can also be an opportunity for consensus building and compromise.

The 2010 Constitution was enriched by contributions from different actors and the review process in Kenya beyond 2017 should also benefit from actors from different sectors. [email protected] www.innovativelawyering.com;blogspot:[email protected]/blogs Revised 26/8/19; 27/8/19; 5/9/2019; 19/12/2019

45 Yash Pal Ghai and Jill Cottrell Ghai (2007) “Constitution making and democratization in Kenya (2000-2005) 14:1 Democratization, 1-25: Sihanya (2018) “Reconstructing the Kenyan Constitution and State, since 1963: Lessons from German, American and African constitutionalism,” Chapter 2 in Sihanya Constitutional Democracy a; (1996) “Constitution-making in Africa: Assessing Both the Process and the Content,” Cornell Law Faculty Publications.

46 Ibid. This culminated in the introduction of new provisions in the command and administration of security in the Kenyan 2010 Constitution.

47 See Ben Sihanya (2014) “The Constitutional Review Process in Tanzania: Reflections on Referendum Monitoring and Experience from Kenya,” Tanganyika Law Society (TSL) Conference Talking Points, Arusha, Tanzania, March 14, 2014. Cf “Building a criminal justice coalition in Tanzania: Lessons from the Kenyan experience,” at www.humanrightsinitiative.org/.../Coalition (accessed 20/7/2018)

48 Yash Ghai (2006) “The role of constituent assemblies in Constitution making,” op. cit.

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