The BBI Constitutional Amendment Process is Dead - What Next?

I was frustrated studying constitutional law at the university. It wasn’t the subject itself, which I understood well enough. So well that I even topped my class in the subject and earned a prestigious award to boot. It was what seemed to be the futility of it all.

I believed constitutionalism was to be the purest expression of the will and values of the people. I thought the constitution was a sacrosanct document. It was to be the ultimate vanguard against those in positions of power, who might choose to abuse this power, donated by their people.

However, the reality of our constitutional dispensation challenged these na?ve and idealistic beliefs. The reality was that the powers that be, either ignored the Constitution or worse had consistently mutilated it to arrogate themselves more power while proportionally taking away the rights and freedom of the people.

By 2010, 30 amendments had been made to our independence constitution. Some of them arguably were for the betterment of the country. The re-introduction of multi-partyism in 1991 can fit in this category. So might the addition of a prime-minister and his deputies in 2008 to recover from the flawed 2007 elections. Both of these amendments were in response to mass action by large swathes of people who felt otherwise disenfranchised from the political process.

However, the other constitutional amendments seemed designed to serve those in power. The independence constitution barely lasted a year before radical amendments were adopted. The prime minister’s position was abolished. Federalism (majimbo) was then replaced with a unitary central government and the Senate scrapped. Finally the country was made into a single-party state, before this was later repealed.

To many constitutionalists, it was therefore a welcome breath of fresh air when the 2010 constitution was promulgated. I have never attended anything political at Uhuru Park, but on August 10, 2010 I attended the promulgation of the 2010 Constitution. I sat in the grassy knolls with thousands of my countrymen and dreamt of a better future secured by this document on which our values rested.

But the signs that there was trouble in paradise started on that very day. I recall seeing President Omar Al Bashir, who was wanted by the ICC, escorted to the dais with pageantry. I tried to swallow down the bitter taste of seeing such a flagrant display of impunity. It felt like a betrayal of the ideals of Chapter 6 of the document which we were promising to uphold. The impunity however did not subside but was exacerbated.

Over the next few years, it seemed all the gains made by the new Constitution were countered by the disregard by the powers that be of several other provisions in that document. The most disregarded being Chapter 6 on Leadership and Integrity. The frustrations I felt as a Constitutional Law student started creeping in once again. If even this beautiful new constitution, promulgated through blood sweat and tears was not going to be respected, what would?

It was in that context that the BBI launched their ill-fated attempt to amend the constitution. Now, some might bristle at my description of ill-fated. After all isn’t there still an option to appeal and appeal once more just in case? Yes, the legal options to continue the BBI process remain, and might even succeed. Even now, there are learned men and women sitting in boardrooms, poring over voluminous texts, plotting how to get the process on track again.

But despite this, I believe the BBI constitutional amendments are well and truly dead. This was a political process as much as it was a legal process. The judgment of the high court has given the anti-BBI politicians sufficient momentum and ammunition to ensure that BBI is no longer palatable to the electorate.

But even legally, I see few rationale counter-arguments to recover from the evisceration of the BBI process by the high court. The BBI process was attacked from so many angles, and the judgment incapacitating on so many levels, that it would require a herculean legal effort to overcome them.

So what next then?

When President Obama visited the country in 2015, he was asked by civic society leaders why the US government was not more outspoken against the government from diluting devolution. They felt the US was not doing enough to ensure that the government was upholding their constitutional mandate. Obama’s response was instructive. The United States, despite 250 years of trying, was yet to perfect their own systems of governance, he said. They were, and are still figuring it out. He said ultimately it was up to Kenyans to figure it out on their own.

That’s what we need to do.

Figure it out.

As Kenyans.

On our own.

In my experience the best way to figure things out, is by doing. We need to start by doing what our existing constitution tells us.

We need the government to respect the rights and freedoms of its citizens and not use police to harass the civil society for speaking truth to power.

We need to respect land rights but promote fair land use policy and ensure humane treatment of land occupants where there is a dispute.

We need state officers to conduct themselves as leaders of integrity, which includes not running for office when they face credible accusations of abuse of office.

We need the legislature to represent their people, and not their financial interests.

We need the executive to obey the judiciary even when they disagree with them.

We need the judiciary to be independent and above reproach.

We need for all levels of government, to vigorously protect and account for public finances.

What we don’t need is a new document that creates new ways of doing all the things we are already not doing.