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Tuesday, August 24, 2010

Amending the constitution is one way out; accepting it as it is wiser


In reference to the United States constitution, President Barack Obama says: “As we read these documents (constitution), they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration.”
Some historians have said that in the history of men, there will never be such an assembly of geniuses as those who wrote the US constitution during the constitutional convention of 1787. Initially, certain scholars claimed that these players were driven by ulterior motives.
The desire to form a stronger union out of the weak confederations was questioned. Did they want to ensure that government bills or bonds that they held remained valid under a well-structured federal set-up? Research showed those who signed the final document held far less financial muscle than those who had not.
Profit was not their motive. Mr James Madison, who has been called the Father of the Constitution, was so selfless that his own state of Virginia punished him for his stance both at the convention and during ratification. They ganged up in the Virginia legislature to defeat him in 1788 for a seat in the first US senate.
As our legislators mull the next steps in the constitutional process, they should take a moment to study the lives of such statesmen. Constitutions are written to answer certain complex and intractable issues in society. It is a document that takes so much thinking that it cannot finally just serve the whims of individuals.
President Obama has been so moved by the foresight of the founding fathers as to suspect they had divine inspiration. I doubt it. They were simply selfless. Their foresight and desire for a new order saw them draft the much-acclaimed Federalist Papers. These documents remain the most authoritative source for explaining the meaning of the US constitution and the political set-up it envisaged.
Yet, these players were not infallible. Mr Madison later opposed the Hamilton plan for a national bank, the forerunner to today’s Federal Reserve Bank. He may have been a genius in philosophy and jurisprudence, but he was not a prophetic economist. As if framing, conceptualising and writing a constitution is not hard enough, the process of implementation is the most fraught with dangers.
Power doesn’t concede easily. It becomes worse when the effects of change start to actually bite. Lords of impunity, people not used to answering anything let alone answering to anyone, just won’t take a picnic any time soon. They have started fighting back. They want amendments, and they want them now!
Never mind that the process of amending the constitution is in-built in the constitution itself. Never mind that you don’t have to shout yourself hoarse to start the process. Chapter 16 of the new Constitution addresses itself to the questions on amendment. There are two routes to that end — Parliament initiative or the popular initiative.
The chapter outlines 10 categories of issues that can only be amended through a referendum. For instance, if you want to question the tenet of equity and inclusivity in the sharing of power, then beyond convincing two thirds of both Houses of Parliament, it shall be subjected to a referendum.
In such a referendum, apart from the requirement of a simple majority, at least 20 per cent of registered voters in at least half of the counties must actually have voted. If you choose the route of popular initiative, first collect one million signatures. Secondly, submit them to the Independent Electoral and Boundaries Commission for verification.
Thirdly, the Bill will be forwarded to the county assemblies. If a majority of the county assemblies approve, it shall be introduced to both Houses of Parliament which may pass such a Bill by a simple majority. Even after all these hurdles, if a Bill refers to the previously mentioned sacrosanct issues in 255 (2), it shall still be taken to a referendum.
Mr William Ruto has told us that great minds discuss issues. If that be so, now is the time that he gave us or at least participated in giving us the Kenyan equivalent of the Federalist Papers. Up till now, we have not heard what qualifies for debate about the constitution.
We have seen rallies, semi-educated talk-shows, civic education, pamphleteering, and newspaper punditry. Some of these have been pretty illuminating. Yet, some have been crass stupidity. Take the clerics talking about forceful Islamisation, abortion on demand, and other nonsense. If you leave explaining a constitution to people who don’t read the Bible, their supposed guide, then you are in trouble.

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