The Building Bridges Initiative debate has so far been shrouded in a lot of mystery occasioned by misinformation. Sadly, the one single point that Kenyans seem to agree on, is the most misleading one; that this shall be the first time we review the 2010 constitution.
Unbeknownst to most Kenyans, since its promulgation in 2010, the Constitution has been undergoing constant restructuring. Not all reviews of the constitution require a plebiscite, and this is perhaps what might be confusing a majority of Kenyans.
While it is indeed true that some amendments may require a referendum, it is only those that touch on areas such as the Bill of Rights, or the leadership structure of the country.
Some changes simply require legislative readjustments, where parliament seats and votes on an issue, using the power bestowed upon it as the custodian of people’s sovereignty. Some changes can be done even through advisories.
Interestingly, one of the most important, and perhaps most unpopular changes to the 2010 constitution was done quite early. In fact, within the first year of the 2013 House. It was the vote that led to the degradation of Senate as the upper house. The National Assembly took powers from the Senate, leaving it a shell of what it was ideally meant to be in the Constitution.
Another important review of the Constitution was Justice Mumbi’s 2019 landmark ruling which stated that corruption suspects had to step aside. Justice Mumbi Ngugi ruled, governors should step aside once charged for a criminal offence and declared section of the law protecting them unconstitutional. She termed Section 62(6) of the Anti-Corruption and Economic Crimes Act which state officers have been using to hang onto office as “entrenching corruption and impunity in the land”. “It seems to me that Section 62(6) apart from obfuscating…are contrary to the constitutional requirements of integrity in governance, are against the national values and principals of governance and principles of leadership and integrity in Chapter Six,” Ngungi ruled.
In another case, which was an advisory that touched largely on the spirit of the Constitution, Maraga’s submission that parliament be dissolved due to the two thirds gender rule requirement and failure to meet it, is a good example.