Saturday, March 14, 2009


Mininum Constitutional Reforms: Are they necessary?
by Felix Kyalo Kitenge posted on Saturday, August 11, 2007

The current discourse on Kenya’s constitution primarily centres around the critical issue of the necessity or otherwise of undertaking minimum constitutional reforms before the forthcoming general elections set for December 2007.

At first sight the minimum reforms calls may appear to be evolving, but with the benefit of hindsight, one realizes that the issue has attended the multi-party debate in Kenya since the re-introduction of plural politics in 1991. Throughout Kenya’s post -91 political history, every time the General elections is near, the political religious and the civil society leaders thematically unite in agitating for minimum or at other times comprehensive review of the constitution and other related laws.

An illustration can be taken of the 1992 and 1997 General elections. Both elections saw the government being the first unwilling but later caving into the pressure to institute minimum legal reforms aimed at leveling the political playing field.

In 1992 the government bowed to international pressure (particularly the Breton woods institutions and donor countries) and local pressure (from the civil society, religious and political leaders), to allow the return of multi-party democracy. The changes made include the famous repeal of section 2A to legally signify the change from one party rule to multi-partism.

In 1997, minimum (or is it minimal) reforms were made under the IPPG banner which saw the repeal and amendment of various laws deemed as barriers to democracy. These include: The Societies Act and the Preservation of public security Act.

The mode of appointment of the Eck commissioners was changed to make it no longer a sole preserve of the president by allowing the nomination by political parties on the basis of their parliamentary strength.

Having shown that the minimum reforms cry is not a new one, the question that follows is whether it is currently necessary to institute minimum reforms before the 2007 general elections.

To answer this, an understanding of the targeted changes is called for.

The primary change targets the constitutional provisions on winning of presidential elections. It is proposed that as opposed to the current provisions that the winner in such elections must win at least 25% in 5 provinces out of eight,an amendment should be made that he ought to garner 50% plus one of all the votes cast.

The presupposed aim of such a move is to stop the current trend where a winning candidate need not have massive nationwide appeal but only have certain ethnic support bases. It also seeks to have all votes in the regions factored in the results as opposed to the case currently where only five provinces matter.

Other changes are as follows:

To provide for a more independent ECK to enable it to fairly and indiscriminately oversee the conduct of elections. This is intended to be achieved by having control its own finances and administrative operations. Also the commissioners are to enjoy a fuller security of tenure.

Gender imbalance in politics is also to be addressed by increasing the number of nominated MPS up to 36 with 24 being women.

Parliament is to vet appointments of senior government officials to ensure integrity and regional balancing is considered.

Fundamentally, in order to prevent the mischief of the president using the date of dissolution of parliament and by extension the date of the general elections as an election campaign tool and weapon. Parliament is to be empowered to control its own calendar.

The requirement of a referendum is also to be entrenched in the constitution.

The foregoing changes are supposed once passed by parliament to be subjected to the referendum to ensure that they attain the legitimacy in the eyes of the public.

In conclusion, all the foregoing changes are in one way or another closely related to the protracted demand and need to have free and fair elections. A comprehensive or full review of the legal apparatus though, would be preferable given the time limitations towards the forthcoming general elections, minimum reforms are clearly the only other alternative or are they?

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