Constitution under threat from those against supreme law

Supporters of the 'Yes' campaign supporting the new Constitution attending a rally at Uhuru Park on August 1, 2010. FILE PHOTO | SULEIMAN MBATIAH |  NATION MEDIA GROUP

In Summary

• Solution: We now need to amend the Constitution not to make it better, but just to save it.
• It is clear for all to see that the government of President Uhuru Kenyatta is intent on killing devolution.

By RAILA ODINGA

When we negotiated the contents of the Constitution through the Bomas conferences and the subsequent processes, we made the assumption that all Kenyans would dedicate themselves to upholding the principles that they would agree on in the final document.

Particularly, we assumed that all arms and officers of the Government would “obey, preserve, protect and defend the Constitution of Kenya”.

We, in fact, required that State officers must swear allegiance to the Constitution before assuming their positions.

When we campaigned for the Constitution during the 2010 referendum, we again assumed that those Kenyans who did not agree with the Constitution would accept the will of the people and join everyone else in implementing it.

Since the opponents of the Constitution had said that they only objected to 20 per cent of the content, one of the first issues that should have been attended to would have been amendments to correct the offensive provisions.

It turns out that all these assumptions were wrong. The opponents of the Constitution did not give up their objections but have instead actively pursued an agenda to fight it.

SUBVERTED THE CONSTITUTION

Through their various positions of influence in the three arms of the government, these anti-Constitutionalists have subverted the Constitution by sabotaging its operation and subjugating its spirit at every turn.

Of the greatest importance is devolution. It is clear for all to see that the government of President Uhuru Kenyatta is intent on killing devolution.

The first way the government is frustrating devolution is in revenue sharing. Article 203 of the Constitution says revenues shall be shared between the national and county governments “calculated on the basis of most recent audited accounts of revenue received, as approved by the National Assembly”.

To deny the county governments their due, the national government has sabotaged the presentation of audited accounts for approval so that the only accounts that are available today as the basis of revenue sharing are those of 2009/2010.

Another method is by using the provincial administration to subvert the county governments. The Constitution required the national government to re-structure the provincial administration. Instead, it was only renamed.

The system remains the same and its officials, as was done previously, are used by the President as agent provocateurs to cause confusion in the counties and frustrate the people.

UNDERMINES NLC

But perhaps the worst and most atrocious abuse of the Constitution is in respect of land. While the provisions on land are very clear, the national government has refused to implement them, and now openly undermines the National Land Commission (NLC).

In what can only be termed as “Treason against the People’s Constitution”, the President and his Secretary for Land have overthrown the provisions of the Constitution and blatantly taken upon themselves the survey and distribution of public and community land.

We now need to amend the Constitution not to make it better, but just to save it. The government is on a clear mission to do what was done to the independence Constitution, which was rendered useless as Kenyans watched helplessly.

The time has come when all patriotic Kenyans must answer to the call of Article 3(1) of the Constitution which says that, “Every person has an obligation to respect, uphold and defend (the) Constitution”. But we also need to amend the Constitution so that it works better.

It is now four years since we promulgated the Constitution and we have seen several issues that need to be urgently attended to. For instance, as mentioned above, if we don’t deal with the issue of “audited accounts as approved by the National Assembly”, the national government can continue using out-of-date figures to cheat the county governments of their due share of revenue.

Or, unless we make clear the mandate of NLC, we shall continue to suffer the social crisis and the insecurity that we all agree are tied to the illegal acquisition of community lands.

The one objection anti-Constitutionalists keep putting forward is that it is too early for amendments. This begs the question of the criteria they are using to reach that conclusion.

AMENDMENTS

The international experience stretching way back to the promulgation of the Constitution of the United States of America is that it is never too early. The test is not the timing but rather the necessity.

In the case of USA, they had forgotten to insert a bill of rights. The Constitution came into operation on March 4, 1789 and the First Amendment was sent to the States for ratification on September 25, 1789, barely six months later.

In fact negotiations for amendment were already under way even before the Constitution itself had been fully ratified.

Closer home, the South African Constitution, from which ours borrows heavily, was first amended on August 28, 1997, also barely six month after it came into operation on February 4, 1997. In its 17 years of existence, the South African Constitution has been amended 17 times.

It is for that reason that the Okoa Kenya movement has proposed various amendments. This is the next phase of the life of the Constitution we promulgated on August 27, 2010. And many patriotic Kenyans are coming together to defend it.

We must thank the drafters that they foresaw a situation where government could be the enemy of the Constitution, and gave the people the power to amend without relying on government.

Mr Odinga is the Cord leader