Is it Possible to Change the Proposed Constitution?

Beginning today, courtesy of an experienced lawyer, CISA will bring you a breakdown of the Proposed Constitution as our way of contributing to an enlightened debate on this all important document. We welcome your questions and comments,

Editor.

You may have read about people saying, “We won’t vote YES unless the proposed constitution is changed before the referendum,” and some others saying, “We can change it after it comes into force.”

Before

The only way to change it before the referendum is to change the law under which this whole process has been carried out (which is rather what happened in 2004-5 so that the then government could change the Bomas Draft to the Wako Draft). But this time, the present Constitution must be changed too. This is because a new section 47A was introduced as a result of the National Accord in 2008, setting up the broad outline of the review process, and steps have been taken under it. Those steps have taken the process out of the hands of parliament. They cannot take it back again without changing the constitution. For this, they need the support of 65 percent of all the National Assembly, which they were unable to muster to propose a single change in the Proposed Constitution as it came before them.

Some people have suggested there can be a change by means of an “Executive Order.” There is no such thing in this country. The president can do only the things that the law allows him.

After

If the constitution is approved by the people, the only way it can be changed is by the new processes set out in the new Constitution. The processes are far more demanding than those that now exist for changing the current constitution.

After a proposed amendment is introduced into the National Assembly, 90 days must pass before it is debated. Then there must be two separate votes where the amendment obtains the support of at least two-thirds of the members (slightly more than under the current constitution!). If the Senate exists this must happen in both house.

Changes to some provisions require a referendum as well. And that must get the support of half of all those who vote, and of at least 20 percent of the votes cast in at least half of the counties (which will mean the counties as defined under the new constitution, that is the 47, old “legal” districts). A referendum will be necessary to change Bill of Rights provisions (such as the right to life, including the abortion issue), the structure of devolved governments (but not their powers) and probably some aspects of land that we understand some people are worried about.

It is true that in some circumstances a popular initiative, supported by the verified signatures of at least one million voters, can compel Parliament to move on the question of amendment. It is unlikely that this will ever be used – surely any plausible position for amendment will be able to get support from some MP to move an amendment in one or other house! The same referendum requirements apply.

The Question

The Review Act requires that the referendum question must be answered by either Yes or No. The Interim Independent Election Commission has decided that the question is to be: “Are you in favour of the Proposed Constitution?”

That is not really the real question – or not the complete question - that voters are being asked. Whatever the ballot paper says, the real question is “Do you want the Proposed Draft Constitution or the current Constitution of Kenya?” The question is NOT:

“Would you prefer the Proposed Constitution to the Bomas Draft?” or

“Would you prefer the Proposed Constitution to the Harmonized Draft?”

In other words, if the vote is “No” what Kenya gets is the existing constitution.

Unfortunately, almost everyone who understands both documents reasonably well would want to answer, “In some ways the Proposed Constitution is better, in some ways it is worse, in some ways it is just the same, and in some ways we cannot tell, mainly because we do not know how new rules and institutions will actually work”.

So each person must decide whether overall they think the proposed is better than the present constitution. “Is it better for Kenya,” must surely be the main question. If it better for a particular group but worse for the country as a whole, it is not really better. And a particularly foolish way to approach the question would be to vote “No” because of some point that is important to you – but which is actually the same in the present constitution.

*The writer is a renowned constitutional lawyer of international repute.

Disclaimer: Views expressed in this section do not necessarily represent the opinions of CISA.