Reasons Why Amending the Constitution is Necessary

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By Dr. Mwangi Wachira

Recently Members of Parliament passed major amendments to the Constitution in the wake of political stand-off arising from the bungled August 8 presidential election.

Should these amendments be signed into law? Some Members of Parliament do not think so.

For answers, one might look at the US Constitution as a perfect example.

There have been over 11,000 attempts to amend the US Constitution since it was ratified in 1788.

In other words, in 229 years, there has been an equivalent of 48 attempts annually to change the US Constitution. That is roughly once every week. Attempts to amend Constitutions are nothing unusual.

However, given that only 27 out of 11,000 attempts have been signed into law, clearly, a high threshold must be met before an amendment passes.

One of the most appealing parts of the US Constitution is its Bill of Rights. It is contained in ten amendments. Significantly, all ten amendments were passed in Congress as a package.

The Bill of Rights addresses freedoms of speech, assembly, worship, the right to petition, bear arms, and due process of law.

It protects citizens from forced housing and feeding of soldiers, unreasonable searches and seizures, self-incrimination, and double jeopardy.  It offers protection from excessive bail and cruel and unusual punishment, entitlement to a speedy and public trial, and trial by jury in civil cases.

All these amendments have become the hallmark of the US legal system.  Yet they were not included in the original Constitution that was drawn up by some of the most lucid thinkers of the time, heirs to hundreds of years of legal scholarship from Western Europe.

Like the experts who wrote the US Constitution, Kenya’s legal scholars must have left out equally important matters.  These must be introduced into the Constitution of Kenya of 2010 by way of amendments.

Amendments to the law are not only inevitable, they are necessary.  Amendments are part of the vigilance to plug any gaps through which the rights of citizens can be violated whether by the State or by fellow citizens.

The task of identifying and plugging gaps in the Constitution is entrusted to legislators. Indeed, the alternate title for Members of Parliament is Lawmakers.

But there is another reason why Kenyans must expect amendments to the supreme law now and in years to come.

John Adams, one of the legal minds that created the US Constitution, and his wife Abigail maintained a constant correspondence throughout the time that he and the others debated and drafted that Constitution.

In their private letters, the couple discusses lofty ideas on governance as well as ordinary domestic events in a family’s life. These private discussions show that the lofty ideas that ultimately find their way into the US Constitution were already widely discussed by ordinary people.

The US Constitution that was ratified in 1788, with all its strengths and weaknesses, was a product of the cultural fabric of the colonies.

For example, everybody in colonial America in 1788 knew that one could not grant the same rights, duties, and privileges to African slaves as to people of European stock.  The cultural norm was to give slaves fewer rights and duties befitting their inferred limited capacity for citizenship.

This norm was dutifully reflected in the Constitution.  Clearly, the social fabric, the norms, dictated the US Constitution. It echoed what was discussed by ordinary people; it was homegrown.  Consequently, it has required few amendments.

In contrast, many ideas in the Kenyan Constitution are borrowed from a wide range of sources.  The ideas have no social grounding in Kenya and civic education is needed before the average Kenyan can understand and use them.

For example, the idea of balance of power between three arms of government is unknown in most of Kenya’s traditional governance. The typical Kenyan does not grow up with the idea of balance of power in governance.

Yet this alien idea is central to the 2010 Constitution whose implementation has bedeviled the 2017 election.

The Constitution is not homegrown. For precisely this reason, Kenya’s Constitution, good as it may be, will require many more amendments or adjustments than the US Constitution. Kenyans can expect more, not fewer amendments in future.

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