Before we discuss the pros and cons of the anticipated referendum to amend the 2010 constitution, I think its prudent to ask ourselves: Do we actually need a constitution? Let’s admit, referendums are not only expensive but also politically polarizing and tedious. Why do we need a constitution? Can a nation exist without a constitution? In our traditional settings, before the era of colonization and ‘bordernization’ of our villages into nations, we did not have a written constitution. Did societies live harmoniously amongst themselves? Certainly. Why and how? The how for later but the why is because people had trust and integrity. So without loudly admitting, constitutions become necessary when integrity and trust die and people depend on what is written on papers to guide them. The colonial masters called this a Constitution. For a great majority of people, this claim will come as a big surprise. We cannot envisage a country without a constitution. However, we did not have one just some 53 years ago. Our people cannot envisage living in a country without a constitution because of the theory induced blindness fallacy. It is hard to question a theory that existed for years, even if it is explicitly flawed, because its not the norm. A lie repeated becomes truth in the illusion of control. Great Britain (GB), our former colonial master has no codified constitution and its the 5th largest economy in the world, its people have coexisted peacefully for centuries and generally has robust justice system. What we do not want to admit is that we cannot be like GB because we do not trust each other and many of those we elect to positions of power have no integrity to handle the laws that would govern us. This is sadly why we need a constitution. Everything else is just a load of jargon and gibberish nonsense by the elites to lord over the rest of us and began just over 5 decades ago. So instead of chasing after a wild goose called constitution and throwing huge amounts of money taxpayers cannot afford at it, let us address the real reasons our country ails; trust and integrity or lack thereof.
However, now that we have a constitution and nothing will take us back to our constitution-less golden era of trust and integrity, let us talk about it. The current constitution though not perfect, is just fine. What lacks is the implementation of its set laws. The wage bill and the over-representation mantra perfected by Third Way Alliance and its masters is just a sideshow. Address theft of public resources (corruption) on its own, not in the mix of a referendum, and all else will just be fine. If we cannot implement what we already have, what guarantees that the amendments will be implemented? I think this pick and choose mentality is an abuse of power and the constitution must be safe from it.
Now that we are where we are as a nation lets look at the proposed amendments in the anticipated referendum. Kenya has had 2 referendums in the last 15 years if memory serves me right and one is in the offing and admittedly we are no better as a country than we were before the new constitution or the referendums that led to it. Of course there are positives realized since 2010, although I cannot say with certainty whether its because of the constitutional changes. Devolution looks like a magic wand to wave at marginalization and dangerously skewed centralization of resources, although its implementation has suffered huge blows and the bleeding will take many years to stop, if ever. Devolution is ailing as those ‘selected’ to manage our resources steal like there is no tomorrow. This is what needs addressed urgently. The fake war against corruption must stop and the daylight robbery and rape of our public funds by governors must be stopped immediately. I digress. The proposed amendments include the abolition of the deputy governor position and appointment of deputies by the governors. It is one thing to abolition the DG posts but quite another to give the authority to appoint the same deputies to the Governors. Firstly, in terms of savings for the taxpayer, it is a drop in the sea contrary to the claims of the proponents. I think one danger with the proponents of the proposed constitutional amendments is their unalloyed focus on salaries as a major factor in the loss of revenue. This is either a misunderstanding or a deliberate misconception. Corruption is our misdoing not wages and therefore even if just under 500 million shillings will be saved annually by abolishing the DG posts, this is just 1% of what is lost through corruption every year. Besides, the amendment will create a single central power in the counties by allowing the Governors appoint their deputies. It will be a government without an opposition. The winner take all in the counties is allowing the governors to steal our resources with impunity. Instead, DGs should be replaced with County Opposition Leaders. This will in my opinion revitalize county politics and give governors something to look over their shoulders. It is prudent to replace it with something more robust that will safeguard against the rampant theft of public resources by Governors and their cohorts.

Ward Funds

The proposal by Third Way Alliance that the Constituency Development Fund (CDF) should be transferred from the national assembly members to the Members of the County Assemblies (MCAs) is misguided at best. It appears Third Way Alliance is bribing MCAs to entice county assemblies to pass the referendum bill. This is dangerous. Politicians of all shades must not be given the mandate to manage any of our funds. Moving the CDF to the MCAs in the name of Ward Funds is just a game of musical chairs. Members of parliaments (national and local) should keep to their principal role of oversight and ‘law making’. Ward Funds should be managed by a secretariat appointed for a period of 7 years where the Governor, area MP or MCA have no powers to interfere with their operations. The head is given a security of tenure and independence to decide where and how to spend the Ward Funds in consultation with stakeholders. If they get involved in corruption and are charged and convicted they should be punished according to the by-laws of respective county governments which should in minimum constitute the cutting of their hands.

Reduction of MPs to 147

While this is commendable from the outset, it is harder to achieve seamlessly. Firstly, this law sets a dangerous precedent for peace. One of the questions we wrestled with as a nation in the formulation of a representative formula in the 2010 constitution was whether to consider population or land mass in the creation of constituencies and counties. I think the sober realization that land size was more appropriate has hit legislators a little late but at least some progress was made. A county like Marsabit is the size of Central Kenya, Western, Nyanza and Nairobi combined according to some estimates. How such a county can be represented by only one member of parliament beggars believe. Kenya is a nation of tribes and many small tribes by that. The 47 counties harbour many small sub-tribes that the 2010 constitution was to protect against marginalization. While the move to use the County as a single constituency unit will reduce the number of parliamentarians, it will make some tribes feel never represented in parliament or County assemblies. This is bringing marginalization of already underrepresented communities through the back door. How then will this encourage harmonious co-existence which is a given precursor to socio-economic development? In my opinion, we should increase the number of counties considering land mass as the measure in order to bring services closer to the people which was the fundamental idea of devolution in the first place.

Life Sentence For Convicted Thieves (Corruption)

This calls for a person convicted of corruption or theft of public resources or money to serve a life sentence with no presidential pardon or amnesty. The timing in the proposal is critical and fundamental but can’t it be amended without a referendum? Would it be implemented? What we lack in the current constitution is not policies or set rules on governance. Missing is implementing them to the letter without fear or favour. We do not have the judicial system to convict someone because we lack integrity in many of our judicial officers and in the absence of a conviction this amendment just remains on paper like many other good laws or policies.

In conclusion, I believe what we need as a country is a complete overhaul of our system of governance not tweaking on the sidelines. In the absence of that, we do not have the resources for a referendum. Kenya is in a recession. The MPs whose house rent we pay on top of all else may not know this, but the common man and woman in Kenya is in the grip of the worst recession. So instead, let us spend the billions to reduce the tax burden on mama mbogas and increase their take-home and before we rush to what seems to be a dynastic referendum, let us take stock of the obstacles to implementing the 2010 constitution.