Popular initiatives to amend Kenya’s constitution: A misdiagnosis of the problem?

Kenya’s 2010 Constitution is yet to be amended, but not for lack of efforts. In particular, the popular initiative for constitutional amendment has been used to bypass actual or perceived institutional resistance in parliament. While constitutional amendment should not be outrightly rejected, the ongoing amendment efforts may have misdiagnosed the root causes of the political and economic debacle, or merely provide platforms for political minorities to popularize their status and causes – writes Mugambi Laibuta.

Debate is raging on whether or not to amend the 2010 Constitution of Kenya. The Constitution, which is just over eight years old, faces serious scrutiny. Despite some efforts to amend the constitution, they have so far failed. In October 2018, an initiative to change the date of the general elections from August to December failed to obtain the required 2/3 support in the National Assembly. Another proposed amendment pending before the National Assembly seeks to give effect to constitutional provisions on equitable gender representation. Past efforts to give effect to the constitutional provision have failed, and in practice women continue to be woefully underrepresented in elected and appointed offices.

Outside the parliamentary structure, one popular initiative, led by the Thirdway Alliance - a political party, aims at reducing the perceived high cost of running the complex state machinery erected by the 2010 Constitution, and at devolving more resources to the counties. Another contentious popular initiative seeks to restructure the Kenyan executive in a manner that would essentially lead to a transition from a presidential to a parliamentary system of government. This last proposal is connected to Raila Odinga who recently reconciled with the current President Uhuru Kenyatta with the aim of quelling tensions occasioned by the last presidential elections. Odinga, who is now 73 years old, has historically advocated for a parliamentary system of government, despite his ultimate support to the 2010 Constitution which maintained a presidential system of government. A shift to a parliamentary system may enhance Odinga’s chances of occupying the highest executive post or otherwise continuing his political fortunes.

The popular initiatives must pass through complex procedures that ultimately require optional referendum for some of the issues and mandatory referendum for others.

The proposed amendment to give effect to equitable gender representation needs supermajority parliamentary approval. The popular initiatives must pass through complex procedures that ultimately require optional referendum for some of the issues and mandatory referendum for others.  However, it is not clear if the popular initiatives will receive the required voter signatures and county support before their consideration by parliament and submission to a referendum.

Amendment proposals before parliament

On the amendment regarding changing the election date, the Constitution currently provides that the general election be held on the second Tuesday of August every fifth year. A proposed amendment in the National Assembly sought to have the date changed to the third Monday in December every fifth year. The rationale of the proposal is that elections held in August disrupt the education calendar and the conduct of national examinations and that more Kenyans are available to vote in December as opposed to August. The proposed amendment failed to garner the required 2/3 majority in the National Assembly.  

The content of the amendment proposal on gender representation is substantially similar to the proposal that failed to garner the necessary supermajority in 2017.

On the implementation of the two-thirds gender rule, the Constitution provides that not more than 2/3 of the members of elective or appointive bodies should be of the same gender. In neither the 2013 nor the 2017 elections was the gender rule realised by Parliament. In 2013, the percentage of women was 19% in the National Assembly and 27% in the Senate. After the 2017 elections, women account for just around 23% of the membership of the National Assembly and Senate. Hence, there is need to amend the Constitution to provide for effective mechanisms to achieve gender representation quotas. There is no general consensus about the framework to achieve this. However, the plausible proposal would be to have women nominated to top up the numbers in both houses of Parliament. The content of the pending proposals are substantially similar to the amendment proposal that failed to garner the necessary supermajority in 2017.

Popular amendment initiatives to ‘Reduce the Load’ and restructure the executive

Apart from the proposals for amendments under consideration in Parliament, there are others that would require approval through a referendum. Popular initiatives to introduce a package of reforms are underway. Under the Constitution, popular initiatives for constitutional amendment must be supported by signatures of one million registered voters, subject to verification by the Independent Electoral and Boundaries Commission. Once the signatures are verified, the proposal is then taken to county assemblies for approval. If approved by a majority of the county assemblies, the proposal ought to be passed by a majority of members of both houses of Parliament (the National Assembly and Senate). If Parliament passes the proposal, it is submitted to the President for assent. If either house fails to pass the proposal, the proposed amendment is submitted to the people in a referendum. However, proposals that affect certain matters must mandatorily be submitted to a referendum (see article 255). Approval in a referendum requires that at least 20% of the registered voters in each of at least half of the counties vote in the referendum, and the amendment is supported by a simple majority of the citizens voting in the referendum.

It is evident that the process of amendment of the Kenyan Constitution through popular initiative is long and challenging. The process is yet to be tested to its conclusion. There has only been one substantive attempt to amend the Constitution through this process. The bid was christened ‘Okoa Kenya’, which translated into ‘save Kenya’. However, the bid failed to garner signatures of one million registered voters. The initiative was thus rejected by the Independent Electoral and Boundaries Commission and collapsed through operation of the law. 

The popular initiative, introduced in the 2010 Constitution, is yet to be tested to its conclusion. 

Currently, there are several proposals on what constitutional amendments should be undertaken. However, only a few of these have been couched in concrete terms and acted upon. One of the proposals from the Thirdway Alliance is dubbed ‘punguza mzigo’, which translates into ‘reduce the load’. This proposal seeks to, among other matters, reduce the number of members of parliament from 416 to 147, and abolish nominated positions in county assemblies and the Senate. More than a third of the members of county assemblies are nominated. The proposal would also increase the share of revenue for counties to 35% from the current 15%. It further seeks to introduce a single 7-year term presidency. Even if the proposal receives the required number of signatures, considering the need for the approval of at least half of the county assemblies, the proposal to abolish nominated members may be a hinderance. It appears that the proposed increase of the share of national revenue for the counties is partly intended to garner their support.

The Thirdway Alliance proposal also introduces issues that ought to be covered under national legislation or policy.  These include the reduction of the cost of running Parliament from current USD 365 million to USD 50 million per year; and the capping of the salaries of elected leaders to a maximum consolidated pay of USD 5000 for the president and USD 3000 for members of parliament per month while abolishing all forms of allowances. These matters should ideally not be subject to a constitutional referendum. The sponsors of the initiative may consider clustering the proposals into those that may require a constitutional referendum, a parliamentary amendment initiative, or just amendments of existing legislation or policies.

One of the popular initiatives would essentially lead to a transition to a parliamentary system of government.

Another popular initiative has been made by Tiaty Constituency Member of Parliament, William Kassait Kamket, who is from a party that supports the ruling party. Kassait’s proposal includes a President elected by a joint session of the National Assembly and the Senate for a single seven-year term, and the creation of the office of the prime minister with two deputy prime ministers, while abolishing the office of the Deputy President. This proposal would essentially lead to a transition to a parliamentary system of government.

The above proposals require that their promoters seek support from one million registered voters in the form of signatures and translate the said proposals into a constitutional amendment bill. Notwithstanding the two formalised proposals, there is discussion on other possible amendments to the Constitution.  The proposals in these debates include the reduction of the number of electoral areas at national and county levels and the number of elected representatives, the restructuring of the executive, setting thresholds for public debt, and the scrapping of the devolved system of government. 

Concluding remarks: Misdiagnosing the problem?  

The popular proposals for constitutional amendment emanate from a seemingly heavy financial burden that has been occasioned by the implementation of the Constitution. Corruption and theft of public resources at national and county levels has become rampant, taxes have increased (recently tax on petroleum products went up by 8% and a housing tax was introduced), elected officials are constantly increasing their salaries and benefits, not to mention the ballooning public debt from internal or external lenders. Kenyans are reeling from a shrinking economy, they have diminished disposable income while the government spends billions of dollars on recurrent costs annually and access to essential services is out of the reach of many.

The popular initiative may merely provide political groups alternative opportunities to advance their self-interest, rather than reinforce popular sovereignty.

Some Kenyans believe that part of the solution lies with amending the Constitution. The proposed popular initiatives reinforce and seek to tap into this public sentiment. However, the economic woes cited are due to poor leadership, weak governance structures and helpless constitutional bodies. In fact, the Constitution is yet to be fully implemented. For example, when elected officials vote to increase their salaries, they do so in flagrant disregard of the Salaries and Remuneration Commission that is mandated to set the salaries. In 2016, the Chairperson of the Ethics and Anticorruption Commission reported that Kenya loses USD 6 billion through corruption each year. On public debt, Kenya’s current public debt stands at approximately USD$49 billion, which is 56.4% of the country’s gross domestic product. In 2008, the percentage was 42.8%. Moreover, as Ken Opalo warned, the popular initiative may merely provide political groups alternative opportunities to advance their self-interest, rather than reinforce popular sovereignty. The process may also weaken the institutionalization of politics as it could disincentivize inter-elite political engagement and compromise. In addition, in the absence of limits on the subject matters that could be proposed through the popular initiative, the sponsors may be using popular proposals, such as increasing the revenue share of the counties, to enhance the chances of acceptance of the outcomes, rather than a principled commitment and understanding of the financial and governance implications.

What Kenya is facing is not a constitutional moment that warrants sweeping changes to the constitutional text, but a leadership and governance crisis that has occasioned economic woes on Kenyans. In such an economic climate, the prioritization and affordability of a referendum is also in doubt. Kenya seems to be undergoing some form of election/referendum every few years since 2002. General elections in 2002, 2007, 2013 and 2017 plus an election in 2022. Referenda were held in 2005 and 2010 and now a proposed referendum in 2020.

Even with an amended constitutional text, there is no guarantee of the end of the culture of impunity, theft of public resources, senseless public borrowing and disregard of the rule of law and constitutionalism. While the constitution is a crucial political and policy instrument, the proposed amendments may have misdiagnosed the problem and as a result prescribe the wrong medicine. The amendment efforts may be diverting needed focus, efforts and resources away from tackling the root causes of the mismanagement of public affairs and resources.

Mugambi Laibuta is an Advocate of the High Court of Kenya and has participated in constitutional review processes in Kenya, South Sudan, Somalia and Chile.