Bitange Ndemo: Let’s build lasting institutions based on constitutionalism

The current friction being witnessed between those who are for and against constitutional changes is not new to countries that have embraced constitutionalism. The Constitution itself is intended to be the vessel for carrying out such debates.

The idea of constitutionalism is largely derived from the beliefs of English philosopher John Locke who opined that “government can and should be legally limited in its powers, and that its authority or legitimacy depends on it observing these limitations.”

Locke also influenced the founders of the American Republic in embracing his ideals. In creating their constitution however, they were not prescriptive. Instead, they built formal and informal institutions to safeguard their democracy.

Institutions like Parliament, the presidency, the courts, government departments and political parties are formal organisations governed by written laws and rules. But that should not be the end. In other countries where institutions are stronger, the concept is often extended to include informal institutions such as behaviour patterns, norms, culture and virtually everything happening within the social, cultural, political and economic realm with no clear rules.

If we start to make laws and rules in everything we do, we may never finish. But more damaging will be the fact that many of the laws and rules may limit the human creativity and innovation. Informal institutions therefore complement the formal ones.

For example, a young Member of Parliament (MP) cannot shout at an older MP even if it is within his right to do so since such an act will be construed as being rude to the elders in the African context. Informal institutions are therefore a critical component in governance irrespective of the fact that there are no written rules.

Complex Constitution

Further, informal and formal institutions matter because no matter how thorough one is in creating legal limitations of government powers, it is never exhaustive. The simpler the Constitution is, the easier it is for the citizens to understand many of their rights. Unfortunately, the Kenyan Constitution is prescriptive to the extent that even an amendment is a thesis by itself.

Even though the Kenyan Constitution is a hybrid of different systems, it borrows heavily from the American. The thinking that created the American Constitution is subject of many research papers published for over 200 years now. And it has provided space for many debates. But not every debate has ended up in amending its original intentions.

So far only 27 amendments to the US Constitution have been done in the past 243 years.

The lesson Kenya can learn from these amendments is that each one of them was geared towards protecting the rights of Americans and not one that sought to change the structure of governance.

Whilst some of the amendments such as the 1st, freedom of speech, press, religion, assembly, and petition; the 13th, abolition of slavery and the 19th, women getting the right to vote may have been contentious initially, they have been accepted in the long run.

However, the Americans are ambivalent to the 2nd amendment-the right to bear arms which remains a sore thumb in the country’s politics given the fact that guns are being used to mow down children in schools.

Key amendments

In my view, if there is anything to change in the Kenyan Constitution, it should be in areas where people’s rights have been trampled on for years on end. These areas include: delayed justice, institutionalised bribery in the electoral process that denies the citizens good leadership, the impunity of leaders raising their salaries without regard to public discontent and lack of strong African informal institutions.

The US constitutional amendments indeed dealt with some of these areas of friction that still persist in our part of the world.  The 6th amendment, the right to a speedy and public trial can transform this country considering that court cases are taking up-to 40 years to be concluded. The practice by lawyers to delay cases until witnesses die as a strategy to win is effectively undermining the rights of citizens and entrenching corruption. 

Until fairly recently, African informal institutions existed in dealing with many cases including divorce but this has since died and people have resulted to courts. Like the US constitution, we need the equivalent of their 7th Amendment, the right to a jury trial in civil matters of $20 and over. This also can be extended to include inter-tribal conflicts that even courts have failed to resolve.

The more urgent amendment to the Kenyan Constitution now should be an amendment to curtail the impunity of MPs and to limit powers to increase their salaries in every session, even in times of crisis. The US response to such irresponsible behaviour by elected leaders is contained in the 27 amendment which states: Congress cannot accept a pay raise until next term.

My prayer is that we need data driven decisions. And there should be at least a study to inform major decisions like amending the Constitution. We need to know what the biggest problem is and how to go about solving that problem.

And also spending billions of shillings to change the Constitution at a time when we are broke and need every coin to ensure that every Kenyan is vaccinated against the pandemic is simply being insensitive to the rights of people.