What should be changed in fixing the law

As the Building Bridges Initiative (BBI) reform engine gathers steam towards possible constitutional amendments, various opinions have been expressed as to not just the desired content of such changes in Kenya’s political structures, but also whether there is enough time — and public funding — for the process to be completed before the next General Election.

There is also the question of whether any approved changes should come into effect before or after 2022.

While divisions have emerged over some of the reforms suggested in the initial report handed over to President Uhuru Kenyatta, and over some proposals offered more recently, one common refrain among pro-BBI voices has been that “at the time that the new (2010) Constitution was adopted, we all agreed that there was 20 per cent that we would have to revisit and fix.” And, they say, “the time to do this is now”.

Whatever the complex exigencies of the present, no one would argue that this, or any, Constitution is perfect. And that’s so even if having a ‘good’ (if not “perfect”) Constitution in no way guarantees obedience to it, with any serious violations undermining the more fundamental notion of constitutionalism itself.

But all this academic discussion aside, what, exactly, was the “20 per cent” that Kenyans felt would eventually have to be “fixed” at some point after August 27, 2010?

A backward look at some results obtained in a nationally random survey conducted by Synovate (previously Steadman, later Ipsos) just one month before the 2010 referendum is instructive.

The first issue to clarify is which Kenyans, exactly, had any issues with the proposed (and eventually ratified) draft? Only 23 per cent of those interviewed stated that they knew “a lot” about it.

And here yet another distinction should be made: between those who said in the survey that they intended to participate in the referendum — and whose views were consequently recorded — and those who reported that they had no intention to do so (which triggered termination of the interview).

Still, even if the actual voter-turnout figure on August 4 was 72 per cent, it is impossible to know just which of the survey respondents were actually among this section of the adult population.

More concretely, the fledgling Interim Independent Electoral Commission reported that just over two-thirds (69 per cent) voted “Yes” to approve the draft, meaning that one-third of Kenyans opposed it.

However, we should not assume that everyone among the two-thirds was happy with all aspects of the draft, nor that the one-third who voted against it found nothing positive with it.
Among the self-reporting “No” voters, it was abortion that attracted most such negative mentions (62 per cent), followed by “land issues” (47 per cent), and next the elevated constitutional-judicial status of the Kadhis’ courts at 40 per cent.

Yet based on the current BBI debate, most striking is that no one has suggested revisiting either of the first and last of these three issues, and with hardly any mention of the second one.

Why is this so, if they were so prominent 10 years ago? Of course, in a democratic society, citizens can scrutinise and revise their most fundamental laws whenever they want, as long as the proper procedures are followed. Moreover, with time and experience, citizens certainly can change their views about any law or constitutional provision.

But based on the 2010 pre-referendum findings shown above, there seems no basis for claiming that the “20 per cent” that should be “fixed” now has much, if any, relationship, to what was most contentious/divisive in 2010. But as was the case then, the only sure way to find out which Kenyans are unhappy with just what parts of the 2010 Constitution — and why — is to conduct a nationally random survey. But shall this be done?

Dr Wolf is a Nairobi-based independent researcher.