YVONNE'S TAKE: Constitution - Do we need it?

In this country, we speak a lot about the Constitution. But what is unconstitutional, and how do we cure it? It would seem that what the courts determine to be unconstitutional, is fixed elsewhere.

From the housing levy, to the new drive in Parliament to bring back the Chief Administrative Secretaries (CASs). A position, that has refused to fit in, not just constitutionally but also logically. Do you remember the judges struggling to comprehend the reporting lines between the CAS and the Cabinet Secretary? In human resource management terms, the reporting lines ended in a graphic absurdity.

We are witnessing a trend where Parliament pretends to fix the things the court has ruled out. But before I get back to present day, let me remind me you of what was done previously. Throughout history of the first 40 years, when leaders wanted to do things they aligned the Constitution. If they wanted to do something bad, they did it the right away. They would amend the constitution to include measures that were previously unconstitutional. But things are different today.

It becomes difficult to have elected leadership that swears by the Constitution but spends the entire time either fighting or contradicting its contents. I think we should drop the pretence and be honest with what we really want to do. Let’s expand the Executive- introduce Prime Minister. Also amend the same article, do away with the 22 members of Cabinet. If we are uncomfortable with 22 CSs, go in there and amend. If we want 40, 50, 60 deputies to the CS, amend the Constitution.

Here are my fears and sympathies, the Constitution of Kenya 2010 seems to have been written with all the worst case scenarios in mind. That is why the drafters fixed the preamble and replaced ‘we, some people’ with ‘we, the people.’ This Constitution was written after all the worst we are capable of. We have been there done that. And who can forget ministries that were split into smithereens just to accommodate political wishes. With all best wishes to those who want to change anything, we have tried it.

BBI was the most recent attempt to change the Constitution and to the best of my recollection, everything was on the table. From the structure of the Executive, to promises of tribes and clans getting their own counties. You see, we are a country of ambitious blueprints and when it comes to politics, we are unmatched in creativity and if I may submit, do you remember in the last term of President Uhuru Kenyatta, we had a supervising Cabinet Secretary in the mould of what we have now gathered the courage to call Prime Cabinet Secretary? So, fellow Kenyans, it would seem we have our way around some of these “stubborn” Constitution, and that is creativity. If the print is too difficult to navigate, do something around the cover and across the shelf to the next literature in form of acts of Parliament, regulations, Executive orders, a gazette notice and random insert in the back pages of print media. That is creativity.

There is only one challenge with this creativity; first, it delays the formation of a national character. That is why up to date, we still grapple with the questions of whether we are a Parliamentary or Presidential system, and quite frankly, we often entertain the idea of a monarchy. Especially, in the back of our reliably sycophantic mindsets. Secondly, this creativity always creates an impression that Kenya is a country constantly in constitutional crisis. And this we must separate from the 5-year cycles of election related instability.

My third and final problem with this constitutional creativity is that it stagnates our progress across decades. Once upon a time, we played the same league with the Asian tigers such as South Korea, Indonesia and the likes of Thailand. How they overtook us, refer to the notes above.