Another attempt to change the 2010 Constitution months after BBI blow

December 16, 2022 - Reading Time: 3 minutes - By John Ngirachu

A genuine attempt at a constitutional amendment to placate the fledgling opposition and do
right with the women base or a red-herring to distract Kenyans and buy to time for his
administration that is facing a myriad of challenges as it clocks 100 days?

These are the questions political pundits are pondering regarding President William Ruto’s
memorandum to both Houses of Parliament dated Wednesday, December 9, outlining his
proposal to have the 2010 Constitution amended.

According to his 9-page memorandum, the President seeks to set up the Office of Opposition
Leader, reestablish the Constituency Development Fund and also increase the number of
nominated MPs so as to meet the two-thirds gender rule.
The memorandum also asked Parliament to amend Standing Orders to allow Cabinet
Secretaries (CSs) to directly answer questions on the floor of the House as an oversight
mechanism.

With the Supreme Court having ruled that the President cannot initiate constitutional change,
Ruto seeks to have members of the two Houses spearhead the process and have constitutional
amendment bills drafted and passed without the public participating in a popular referendum.

However, this attempt at a legal workaround has already run into headwinds with the Law
Society of Kenya (LSK) which has faulted the proposal for the creation of an office of the official
opposition that is common in parliamentary democracies as in conflict with Kenya’s style of
presidential democracy borrowed from the American system.

“We have a system of government that is largely presidential, and the president comes from
the coalition that forms the majority and there is another coalition that forms the minority.
That is the structure that we picked for this country. You cannot, therefore, introduce the
leader of the opposition. That amendment in itself does not conform to the current
constitutional structure that we have. It should not even be discussed in Parliament,” said LSK
President Eric Theuri in a media briefing on Thursday, December 15, as reported by Capital
News.

The quest to ensure gender parity is bound to prove to be a costly affair more so for the Ruto
government which is already struggling to balance its books.

There are currently 47-woman representatives. Ruto’s memo indicates that 40 women
Members of Parliament – 26 in the National Assembly and 14 in the Senate – are required to
ensure the two-thirds threshold is met. According to the Salaries and Remuneration
Commission guidelines, an MP’s monthly basic salary is Sh710,000. Forty new members will
translate to a bill of Sh340 million every year. This cost burden will fall on the already highly
taxed citizenry.

The proposals have birthed the latest political storm and are bound to keep the political class
chattering going into the new year.
Already, Azimio leader Raila Odinga on his Twitter account derided the belated support for
constitutional amendment by Ruto who was firmly behind the failed BBI initiative.
“Mr Ruto's memorandum presents proposals without recognizing the fact that BBI reports,
which are official government documents, contain all those proposals coupled with the
rationale on why they had been deemed necessary by the people of Kenya. Had Mr. Ruto been
honest on BBI, everything he has suggested in his memorandum would be law today. However,
they can't be presented as he has done nor processed through the procedure he is prescribing.
He must comply with the same imperatives that he demanded during BBI,” reads parts of
Odinga’s tweets.

Even as political chatter continues unabated, the parliamentary process has commenced.
People Daily reports that Speaker Moses Wetang’ula in a letter to lawmakers who are currently
on recess, has directed three House committees to be ceased the matter.
The JLAC committee will consider the two-thirds Gender Rule and the Establishment of the
Leader of Official Opposition, the Procedure and House Rules Committee will consider the
amendment to the Standing Orders while the Joint Parliamentary Ad Hoc Committee on
proposals to amend the Constitution to entrench certain specialised funds will consider the
establishment of the Constituency Development Oversight Fund and the National Government
Actions Fund.

According to Wetang’ula’s letter the committees are expected to undertake public participation
as required under Article 118 of the Constitution and submit reports on the same to the House
when sittings resume in February.

The constitutional change fronted by former President Uhuru Kenyatta and his handshake
brother Raila was challenged all the way to the Supreme Court which finally ruled it, to be “null
and void.”

It is to be expected that Ruto’s quest to fundamentally change the basic structure of the 2010
Constitution will also face legal hurdles while providing yet another political battlefront for
Kenya Kwanza and Azimio in 2023.

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