Do we really need to hold a referendum?

Opinion and Analysis

 

By JOE KIEYAH

In Summary

• The future generation must be entitled to discretion with adequate elasticity to interpret such principles based on their times, not ours.

The Constitution is the bedrock of any state and it reigns supreme over any other law and policy.

The 2010 promulgation of the Constitution was indeed a milestone. It marked the rebirth of the Kenyan nation, following a 25-year gestation period of political struggle of self-determination to become a constitutional democracy.

This momentous decree came as a great beacon of hope to millions of poor Kenyans who overwhelmingly affirmed the new constitutional dispensation.

However, political bickering, among other factors, has interfered with the legislative implementation agenda of the Constitution.

While it is hailed as one of the most progressive legal document, its implementation has been mired with unresolved complex legal questions. Such questions include the controversial call to amend it through a popular initiative known as “Okoa Kenya”.

The referendum call and its eminence have sparked a public furore that is gradually metamorphosing into a titanic political battle.

The protagonists in the Opposition are stubbornly in favour of the referendum as an alternative vehicle to redress their policy concerns of today.

Instead of using the existing institutions, the protagonists have understandably opted to engage the citizens – and they have a right to do so – directly through the national referendum as a curtain raiser for the 2017 General Election campaign.

Retrospectively, such a call is an indictment of our failure to have rigorously interrogated the draft constitution before its promulgation. In hindsight, such scrutiny would have pre-empted the immediate need for this amendment.

Notably our Constitution is substantively drawn from the constitution of United States of America with a major divergence.

The US constitution is the hallmark of constitutional democracy. It is the oldest and shortest in the world with 4,440 words and it has been amended only 27 times in over 200 years of its existence.

Notably, the US constitution outlines discretionary general principles of empowering and limiting government with few details that are sometimes ambiguous.

These principles have endured the test of time with adequate elasticity to accommodate concerns of each generation of Americans.

Instead, Kenya’s framers of the Constitution espoused the rule-based view with specific details. This non-discretionary rule was a manifestation of the framers’ mistrust of the manner in which constitutional power was exercised by the past governments.

The framers naively viewed the Constitution as a panacea for all our past governance issues. The prevalence of political amplification of this local view is the root cause of our problems.