Amending the Constitution

In considering amendments to Kenya’s 2010 Constitution, the US Constitution could be a good example.

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

In other words, during its 229 years life there have been the equivalent of 48 attempts annually to amend the US Constitution. That is roughly once every week.

Of these, only 27 have survived to become part of the Constitution. The small number of successful attempts attests to the high threshold that must be met before an amendment passes.

If other countries with written constitutions have had similar experiences, it can be deduced that amending constitutions is commonplace.

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 soldiers, unreasonable searches and seizures, self-incrimination, and double jeopardy. It offers protection from excessive bail, as well as cruel and unusual punishments, speedy and public trial, and trial by jury in civil cases.

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

It would be the highest form of hubris to think that in framing Kenya’s constitution our legal scholars did not overlook equally important matters.

Amendments to the constitution are not only inevitable, they are necessary. It is 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 such gaps is entrusted to Kenya’s highest lawmakers: the people’s representatives. Indeed, the alternate title for Members of Parliament is Lawmakers.

But there is another reason why Kenyans must expect amendments to the 2010 Constitution 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 Mr. Adams and the others debated and drafted the constitution. This correspondence, a mixture of lofty ideas on governance and mundane domestic events in the life of a family has been seized upon to promote different causes.

Reading the husband and wife correspondence reveals something that is relevant to Kenya. Many of the ideas which are boiled down to their essence and captured in the US Constitution were drawn from the cultural fabric of the original thirteen colonies and Europe which was the frame of reference for the British colonies. These ideas were already part of the social contract before they were boiled down and written as a constitution. In effect, 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 people of European stock. The cultural norm was to give slaves fewer rights and duties befitting their inferred capacity for citizenship. This norm was dutifully reflected in the new Constitution. Clearly, the social fabric dictated the US Constitution.

In contrast, key concepts in the Kenya Constitution are borrowed from a wide range of sources. While they appeal to some Kenyan legal minds, many of the ideas have no social grounding in Kenya and civic education is needed before the average Kenyan can accede to them.

For example, the idea of balance of power between three branches 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 idea is central to the 2010 Constitution whose implementation has bedeviled the 2017 election.

Upon application, parts of the Constitution will turn out to have holes through which mischief can come. Lawmakers have a responsibility to plug these holes, especially because the Constitution is not homegrown. It is not a distillation of values that already existed in Kenya before 2010.

The 13 British colonies in America were very fortunate. The Constitution that they distilled from their social contract has required only 27 amendments in 229 years. Kenya’s Constitution, good as it may be, will require many more.

By Dr Mwangi Wachira | mwangiwachira60@gmail.com