Miguna: Can't Amend Katiba Until After 2012

[Onyango Oloo]

ATTEMPTS AT AMENDING THE NEW CONSTITUTION CAN ONLY BE MADE AFTER 2012 ELECTIONS

By MIGUNA MIGUNA, AUGUST 8, 2010

On August 4th, about 70% of Kenyans voted for the entire new Constitution. They did not vote for a chapter, an article or provision. They did not vote for or against any particular issue. The referendum question was one: it was whether one preferred the new constitution in its entirety or the old one. Kenyans overwhelmingly chose the new and rejected the old. They were not required to identify issues or portions of the new constitution they agreed with or disagreed with. This was not a multiple choice referendum. There were no contentious issues in the new constitution. None was identified, agreed on and isolated, to be addressed later. There was no agreement to “pass it now and amend later;” as the “No” spin doctors are claiming. The law only required ratification of the new constitution by 50% plus one of all voters.

When the final draft of the new Constitution was passed by Parliament, it was passed as one organic unit; not in bits and pieces. The rules of the game are simple: at the end of the game, one side wins one hundred percent and one side loses one hundred percent. This time around, the side that won obtained a convincing margin that allowed ratification without any contestation. If those opposed to the new charter received just 51% of the total votes cast, they would have similarly won 100% and the draft would have been rejected. The rules don’t change because of the side that has emerged victorious. Had the “Yes” side lost, they, too, would have been disbarred from seeking “amendments” as a short-cut to ratification.

The constitutional review process is like a relay race. The best team wins, not because it has one or two fastest sprinters; it wins because the whole team, working together, performs best – as a team. Without team work, even the best sprinter cannot win a relay race alone; s/he needs the rest of the team. Each member of the team must not just run fast; they must strictly adhere to the rules of the game. If one sprinter has a false start, runs outside his lane or trips other runners, the entire team might be penalized or disqualified. It would not matter that the disqualified team boasts of one or two Olympic champions. The misbehavior of one runner can spoil the chances of the entire team.

Similarly, in a democratic contest, both losers and winners are required to adhere to the rules of the game. In the just concluded referendum, it is important to underline the fact that there was no agreement to amend the Constitution immediately after its passage. Nor was there formal acknowledgement by both sides that the draft was faulty and needed amendment. The Constitution itself provides for mechanisms of amendments; none of which require either the President’s or the Prime Minister’s interventions.

Amendment by Parliament

Article 256 provides that a Bill to amend the Constitution may be introduced in either the National Assembly or the Senate. Thereafter, Parliament shall widely disseminate the Bill and facilitate public discussion about it. After the Bill’s passage by both Houses, the Speakers of the two Houses of Parliament shall jointly submit it to the President for assent and publication, with a certificate confirming its adoption by both Houses.

However, if the proposed amendment relates to the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values and principles of governance, the Bill of Rights, the Presidential term of office, the independence of the judiciary and the commissions and independent offices, the functions of Parliament, the objects, principles and structure of devolved government and the provisions of Chapter sixteen, the President shall not assent to the Bill until the Independent Electoral and Boundaries Commission (IEBC) would have conducted a referendum on the issues within 90 days of the Bill’s passage. If approved by a national referendum, the President shall assent to the Bill within 30 days and cause it to be published.

Amendment by popular initiative

Article 257 provides that the Constitution may be amended by popular initiative if at least one million registered voters petition through a “general suggestion” or “draft Bill.” Once the IEBC certifies that at least one million registered voters support the initiative, it shall submit the draft Bill to each county assembly for consideration within three months after it is submitted by the IEBC. If approved by the majority of the county assemblies, the Bill will be presented to both Houses for consideration without delay, and if passed by majority members of both Houses, it shall be submitted to the President for assent. Subsequently, it shall be subjected to a referendum.

Clearly, those are the only legal and constitutional processes of amendment. If we adhere to the rule of law and respect the supremacy of the people, then we should insist that any contemplated amendments must follow either of the two options. But either option cannot be accessed until the new Constitution has been operationalized and all the new institutions such as the Senate, the National Assembly, the counties and county assemblies are in place. Even the “President” referred to at Arts. 255-257 is not the current holder of that office; it is the one Kenyans will elect in August 2012. In other words, amendments to the new Constitution cannot occur until after the 2012 elections!

Anything else would be unconstitutional. Those calling on the President to break or subvert the law ought to realize that the era of the imperial presidency has been buried forever.

[madgf]

Well I hope they think of something because that's just unacceptable. I'm sure a chunk of people who voted yes were under the presumption amendments or at least MoUs or various other presidential stipulations could be made prior to elections. From my understanding under the current arrangement or pre-katiba phase there is still room for flexibility. You'd be cheating voters to deny this. They should at least for the sake of unity address the contentious ones. Set another timeline, panel of experts, run a poll, a mini referendum, anything to curb the heat come 2012.

[politicalmaniac]

Hon Miguna says
..."it is important to underline the fact that there was no agreement to amend the Constitution immediately after its passage. "

This needs clarification or insertions of caveats.
During the campaigns, the Yes side used the argument to the effet that "Lets adoopt this thing and if there changes to be made that can be done later".

This may make many folks to believe that there was indeed a tacit agreement to revist the KATIBA and amend it Naivasha style.

[phil]

Aug 10, 2010 8:34:45 GMT 3 @madgf said:

Well I hope they think of something because that's just unacceptable. I'm sure a chunk of people who voted yes were under the presumption amendments or at least MoUs or various other presidential stipulations could be made prior to elections. From my understanding under the current arrangement or pre-katiba phase there is still room for flexibility. You'd be cheating voters to deny this. They should at least for the sake of unity address the contentious ones. Set another timeline, panel of experts, run a poll, a mini referendum, anything to curb the heat come 2012.

So you think the katiba shall be contention free after addressing the concerns of the NO side? Or would you just be creating fresh contentious issues?

You cannot purport speak for those who voted YES or NO. For crying out loud, this was a secret ballot. We can only analyse the results. The laws for adopting or rejecting the constitution are not being published now or being introduced by Miguna like you are trying to suggest. These laws were passed by parliament itself. I believe some strong NO and YES adherents were in parliament then.

If you take a few years steps back on the reform process, you will see the current so called contentious issues are political creations of the status quoists and misguided clergy men/women; and were never contentious during the Bomas process, which is where the process was first hijacked from Kenyans and mutilated by Wako in Kilifi. In fact some of the contentious issued being raised now are worse -off in the current constitution which is where NO wants us to revert to.

The current about to adopted constitution is the closest to an agreement parties can reach. The document gives windows of opportunities for amendment. You do not expect to be able to amend the constitution if you cannot reach the threshold required.

Otherwise, they are free to start pro-reform movements and build support for amendments from there.

[tactician]

Aug 10, 2010 6:58:33 GMT 3 Onyango Oloo said:

ATTEMPTS AT AMENDING THE NEW CONSTITUTION CAN ONLY BE MADE AFTER 2012 ELECTIONS

By MIGUNA MIGUNA, AUGUST 8, 2010

On August 4th, about 70% of Kenyans voted for the entire new Constitution. They did not vote for a chapter, an article or provision. They did not vote for or against any particular issue. The referendum question was one: it was whether one preferred the new constitution in its entirety or the old one. Kenyans overwhelmingly chose the new and rejected the old. They were not required to identify issues or portions of the new constitution they agreed with or disagreed with. This was not a multiple choice referendum. There were no contentious issues in the new constitution. None was identified, agreed on and isolated, to be addressed later. There was no agreement to “pass it now and amend later;” as the “No” spin doctors are claiming. The law only required ratification of the new constitution by 50% plus one of all voters.

When the final draft of the new Constitution was passed by Parliament, it was passed as one organic unit; not in bits and pieces. The rules of the game are simple: at the end of the game, one side wins one hundred percent and one side loses one hundred percent. This time around, the side that won obtained a convincing margin that allowed ratification without any contestation. If those opposed to the new charter received just 51% of the total votes cast, they would have similarly won 100% and the draft would have been rejected. The rules don’t change because of the side that has emerged victorious. Had the “Yes” side lost, they, too, would have been disbarred from seeking “amendments” as a short-cut to ratification.

The constitutional review process is like a relay race. The best team wins, not because it has one or two fastest sprinters; it wins because the whole team, working together, performs best – as a team. Without team work, even the best sprinter cannot win a relay race alone; s/he needs the rest of the team. Each member of the team must not just run fast; they must strictly adhere to the rules of the game. If one sprinter has a false start, runs outside his lane or trips other runners, the entire team might be penalized or disqualified. It would not matter that the disqualified team boasts of one or two Olympic champions. The misbehavior of one runner can spoil the chances of the entire team.

Similarly, in a democratic contest, both losers and winners are required to adhere to the rules of the game. In the just concluded referendum, it is important to underline the fact that there was no agreement to amend the Constitution immediately after its passage. Nor was there formal acknowledgement by both sides that the draft was faulty and needed amendment. The Constitution itself provides for mechanisms of amendments; none of which require either the President’s or the Prime Minister’s interventions.

Amendment by Parliament

Article 256 provides that a Bill to amend the Constitution may be introduced in either the National Assembly or the Senate. Thereafter, Parliament shall widely disseminate the Bill and facilitate public discussion about it. After the Bill’s passage by both Houses, the Speakers of the two Houses of Parliament shall jointly submit it to the President for assent and publication, with a certificate confirming its adoption by both Houses.

However, if the proposed amendment relates to the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, the national values and principles of governance, the Bill of Rights, the Presidential term of office, the independence of the judiciary and the commissions and independent offices, the functions of Parliament, the objects, principles and structure of devolved government and the provisions of Chapter sixteen, the President shall not assent to the Bill until the Independent Electoral and Boundaries Commission (IEBC) would have conducted a referendum on the issues within 90 days of the Bill’s passage. If approved by a national referendum, the President shall assent to the Bill within 30 days and cause it to be published.

Amendment by popular initiative

Article 257 provides that the Constitution may be amended by popular initiative if at least one million registered voters petition through a “general suggestion” or “draft Bill.” Once the IEBC certifies that at least one million registered voters support the initiative, it shall submit the draft Bill to each county assembly for consideration within three months after it is submitted by the IEBC. If approved by the majority of the county assemblies, the Bill will be presented to both Houses for consideration without delay, and if passed by majority members of both Houses, it shall be submitted to the President for assent. Subsequently, it shall be subjected to a referendum.

Clearly, those are the only legal and constitutional processes of amendment. If we adhere to the rule of law and respect the supremacy of the people, then we should insist that any contemplated amendments must follow either of the two options. But either option cannot be accessed until the new Constitution has been operationalized and all the new institutions such as the Senate, the National Assembly, the counties and county assemblies are in place. Even the “President” referred to at Arts. 255-257 is not the current holder of that office; it is the one Kenyans will elect in August 2012. In other words, amendments to the new Constitution cannot occur until after the 2012 elections!

Anything else would be unconstitutional. Those calling on the President to break or subvert the law ought to realize that the era of the imperial presidency has been buried forever.

This article by Miguna simply cannot go unchallenged because he is peddling outright lies.

Let's start with the first lie that the katiba cannot be amended cos there is no Senate.

The Sixth Schedule i.e. Transitional & Consequential Provisions of the new Katiba provides as follows in Section 11 with regards to the Senate:

11. (1) Until the first Senate has been elected under this Constitution—

(a) the functions of the Senate shall be exercised by the National
Assembly; and

(b) any function or power that is required to be performed or exercised by both Houses, acting jointly or one after the other, shall be performed or exercised by the National Assembly.

(2) Any function or power of the Senate shall, if performed or exercised by the National Assembly before the date contemplated in subsection (1), be deemed to have been duly performed or exercised by the Senate.

So there you have it - the current National Assembly will act on behalf of the Senate until the next general elections.

Therefore, Miguna's assertion that we cannot amend the Katiba cos there is no Senate falls flat on its face.

Let's go to the second lie that we cannot amend the katiba cos there are no counties or county assemblies.

Counties and county assemblies come into the issue of amendment of the new katiba only when proposing amendments via popular initiative as prescribed under article 257.

But this is NOT the only way to amend the katiba.

The new katiba can be amended through a bill introduced in parliament.

This is as prescibed in Article 256 i.e. Amendment by parliamentary initiative.

Here, as we saw abover, the present National Assembly would act as both the national assembly and senate.

If the amendmen touches on the protected clauses (bill of rights, president's term limits etc) then a referendum is a must.

Again - we can see that it is possible to amend the katiba without having the counties and county assemblies in place ie before 2012.

Lastly, let me address the most egregious of all of Miguna's lies.

ie that "the President referred to at Arts. 255-257 is not the current holder of that office; it is the one Kenyans will elect in August 2012"

By so saying, he is implying that once the new katiba is promulgated, there will be no president!

So lemme ask Miguna, who exactly is the president that will take the oath of office on the 27th under the new katiba?

Miguna Miguna, please stop these lies.

I am even ashamed that you were on our YES side for if this is the YES you were voting for, then clearly we were on separate sides.

Damn - and we thought impunity was over.

[roughrider]

Tactician;

I agree with you on this. I think you have the more correct interpretation, unless someone else unearths something that proves us wrong. The constitution can be amended.

However, I do not see how Miguna Miguna's misinterpreting the law equals impunity etc – that is making a mental jump that I am clearly incapable of. You can point out that you disagree without being disagreeable, you know.

I think Miguna is right on one score though: even if we can amend the Katiba BEFORE all the relevant institutions it proposes are in place, its spirit and democratic imperative demands that it is an even greater good and a more solid approach to bring amendments AFTER the new checks and balances and procedures have been implemented.

I think it will be impolitic, difficult, vexatious and against basic democratic practice to begin a process of agitating for changes in the Katiba even before we have felt its influence and in the face of the stunning endorsement just last week!

I ceratinly hope we can avoid an expensive referendum for several years especially on matters where there is NO overwhelming consensus.

[tactician]

Aug 10, 2010 11:56:25 GMT 3 @roughrider said:

Tactician;

I agree with you on this. I think you have the more correct interpretation, unless someone else unearths something that proves us wrong. The constitution can be amended.

However, I do not see how Miguna Miguna's misinterpreting the law equals impunity etc – that is making a mental jump that I am clearly incapable of. You can point out that you disagree without being disagreeable, you know.

I think Miguna is right on one score though: even if we can amend the Katiba BEFORE all the relevant institutions it proposes are in place, its spirit and democratic imperative demands that it is an even greater good and a more solid approach to bring amendments AFTER the new checks and balances and procedures have been implemented.

I think it will be impolitic, difficult, vexatious and against basic democratic practice to begin a process of agitating for changes in the Katiba even before we have felt its influence and in the face of the stunning endorsement just last week!

I ceratinly hope we can avoid an expensive referendum for several years especially on matters where there is NO overwhelming consensus.

Roughrider,

The impunity arises cos Miguna presumes that the NO voters somehow have less rights under the katiba than the YES voters do.

All of us are equal under the Katiba and anyone can bring amendments whenever he so wishes.

you state that it would be "...impolitic, difficult, vexatious and against basic democratic practice to begin a process of agitating for changes in the Katiba even before we have felt its influence and in the face of the stunning endorsement just last week!"

Now if i may ask you, when will it be polite, easy, troublefree and in line with basic democratic practise to begin agitating for changes?

In 5 years? 10 years? 20 years?

In truth, this is a question that only Kenyans can answer through either their elected representatives or they themselves thru a referendum.

Let us not assume that we are cleverer than Kenyans as a whole. This is how dictatorship begins ie when a select few abrogate to themselves the right to decide for others whats best for them (the others).

Let he who wants amendments bring them to Bunge or via referendum as the case maybe and lets see how it goes.

If indeed the agitation for changes is against democratic practise as you say, then no doubt kenyans will reject these amendments.

If the proposed amendments are indeed fine, then kenyans will accept them through another stunning endorsement.

Either way, there is only one way to know which is which.

And this is not by Miguna or anyone else assuming he can dictate what amendments are in Kenyans best interest.

The only way to know which amendments are right or not is simply by putting them to the vote.

[roughrider]

Tactician

I don't hold brief for Miguna and if he cared enough he would come here and articulate his case further. Mine is just to challenge your disagreeable attitude.

Roughrider,

The impunity arises cos Miguna presumes that the NO voters somehow have less rights under the katiba than the YES voters do.

All of us are equal under the Katiba and anyone can bring amendments whenever he so wishes.

No. There is no way you can derive that conclusion from what Miguna said. He certainly did not refer to YES or NO voters being treated differently. He just missed out on the legal meaning of the transitional arrangements, and having done that, concluded that it is not possible to amend (whether you are YES or NO). He also hinted at the democratic practice where majority has their way.

you state that it would be "...impolitic, difficult, vexatious and against basic democratic practice to begin a process of agitating for changes in the Katiba even before we have felt its influence and in the face of the stunning endorsement just last week!"

Now if i may ask you, when will it be polite, easy, troublefree and in line with basic democratic practise to begin agitating for changes?

In 5 years? 10 years? 20 years?

In truth, this is a question that only Kenyans can answer through either their elected representatives or they themselves thru a referendum.

I am refering to the agitation to bring changes or discuss changes immediately. It does not make democratic sense for the issues that have been clearly settled by a referendum to be revisited immediately. It is also expensive and it consumes precious national time. A plebiscite is a plebiscite. Recall that the purpose of referenda is to settle fundamental matters by gauging public support or disapproval. It is impunity to circumvent and distort what people have just voted for. In time it will be very ok to begin discussing changes via the right channels. Right now, parliamentary attention should be on enabling implementation.

Let us not assume that we are cleverer than Kenyans as a whole. This is how dictatorship begins ie when a select few abrogate to themselves the right to decide for others whats best for them (the others).

I agree with you. We cannot be cleverer than say the 70% that approved the katiba, including the ways in which it can be changed. These 70% know that this has been a long process and there are people who suffer contradictions and who will do anything to subvert this katiba. But we also have a history to learn from. Remember that we had a devolved multi-party system in 1963. It is unfettered and forced amendments by politicians that created imperialism and dictatorship around the presidency. At that time there was nobody to defende the constitution. That, my friend is really how dictatorial systems are created.

Let he who wants amendments bring them to Bunge or via referendum as the case maybe and lets see how it goes.
If indeed the agitation for changes is against democratic practise as you say, then no doubt kenyans will reject these amendments.

If the proposed amendments are indeed fine, then kenyans will accept them through another stunning endorsement.


Either way, there is only one way to know which is which.

And this is not by Miguna or anyone else assuming he can dictate what amendments are in Kenyans best interest.

The only way to know which amendments are right or not is simply by putting them to the vote.

Fine and in time, but as of now we know what the stunning endorsement was last week. Do you suppose Kenyans have changed their minds already and do not want the National Land Commission anymore? Or think the system of government is nettlesome? Or the Bill of rights too liberal? I think Kenyans were saying, let us wear these shoes, walk about with them then we can say, yeah, they fit just right or maybe we can say they pinch a little here and could tighten the laces a bit there… but as of now we haven’t worn those shoes!

[adongo23456]

I think we are just splitting hair here and talking about "lies" etc may be more for entertainment or vested political interests. Parliament cannot and will not amend anything in the katiba. Even the minor things they can amend will need a 2/3 majority. These fellas couldn't get that number to do anything after the CoE gave them the Draft.

We had this argument before when the likes of tactician were bragging that the PSC will reject the CoE Draft call another round of consultation between the PSC and the CoE and take the matter to the Reference Group and bulldoze whatever changes they want. That all came to zero when reality came in. Nobody had the guts to oppose the Draft and bunge could not even alter a coma in the Draft. So where are they going to get the people to make amendments? And what exactly are those amendments?. Ruto the darling of the NO camp wants regions. His godfather Moi, wants all counties abolished. The other weirdo called Machage wants more counties and so does Jirongo. So what are they going to amend when they don't even agree among themselves. It just nonsense. Some clergy in the meantime want their hands intact in the women's womb.

So are we going to have another referendum to decide on devolution? Who says Kenyans will vote any different than they just did? How will the political acrobats like Ruto decide on what they really want?

In any referendum people make choices. Kenyans made their choice. The fact that about 3 million Kenyans voted no is practically irrelevant. If they want they can start a campaign to change the katiba. It took 28 years to change what Moi and Kibaki imposed on Kenyans in 1982. My guess is it will take much longer to change this one. In the meantime the law is the law is the law.

So yes there has to be accommodation of the aspirations of those who opposed the katiba by incorporating some of their wishes in the implementation process but this talk of amendments is just misplaced. If they have the numbers, let them do it. The truth is they don't. All the other technical stuff is irrelevant at this point.

adongo

[kamalet]

RR

I think Tactician has very well highlighted the LIES by Miguna and I do not think there is anything to add to what has already been said!

However, I must disagree with some of your assertions

I am refering to the agitation to bring changes or discuss changes immediately. It does not make democratic sense for the issues that have been clearly settled by a referendum to be revisited immediately. It is also expensive and it consumes precious national time. A plebiscite is a plebiscite. Recall that the purpose of referenda is to settle fundamental matters by gauging public support or disapproval. It is impunity to circumvent and distort what people have just voted for. In time it will be very ok to begin discussing changes via the right channels. Right now, parliamentary attention should be on enabling implementation.

The price for democracy has never been known to be cheap and the people must be given their right to ask for changes - any changes - they think they want in their constitution. It does not matter how long after the promulgation of the new constitution, if Gays want to have their rights embedded in the constitution, you cannot ask them to wait until an undetermined time has elapsed.

It certainly is not impunity for anyone to ask for more rights or the removal of anything they do not like int he constitution merely because the document is still an infant! The choice of what is added or taken away still remains within the structures that have been built to amend it. Thankfully the constitution will not be a copy and cut thing!!

Many Kenyans went to the vote and endorsed the document not because it had no faults or was 100% agreeable, but because the disagreeable elements in the document were not many enough to warrant the rejection of the document!

[tactician]

Aug 10, 2010 14:31:39 GMT 3 adongo23456 said:

I think we are just splitting hair here and talking about "lies" etc may be more for entertainment or vested political interests. Parliament cannot and will not amend anything in the katiba. Even the minor things they can amend will need a 2/3 majority. These fellas couldn't get that number to do anything after the CoE gave them the Draft.

We had this argument before when the likes of tactician were bragging that the PSC will reject the CoE Draft call another round of consultation between the PSC and the CoE and take the matter to the Reference Group and bulldoze whatever changes they want. That all came to zero when reality came in. Nobody had the guts to oppose the Draft and bunge could not even alter a coma in the Draft. So where are they going to get the people to make amendments? And what exactly are those amendments?. Ruto the darling of the NO camp wants regions. His godfather Moi, wants all counties abolished. The other weirdo called Machage wants more counties and so does Jirongo. So what are they going to amend when they don't even agree among themselves. It just nonsense. Some clergy in the meantime want their hands intact in the women's womb.

So are we going to have another referendum to decide on devolution? Who says Kenyans will vote any different than they just did? How will the political acrobats like Ruto decide on what they really want?

In any referendum people make choices. Kenyans made their choice. The fact that about 3 million Kenyans voted no is practically irrelevant. If they want they can start a campaign to change the katiba. It took 28 years to change what Moi and Kibaki imposed on Kenyans in 1982. My guess is it will take much longer to change this one. In the meantime the law is the law is the law.

So yes there has to be accommodation of the aspirations of those who opposed the katiba by incorporating some of their wishes in the implementation process but this talk of amendments is just misplaced. If they have the numbers, let them do it. The truth is they don't. All the other technical stuff is irrelevant at this point.

adongo

Adongo,

Miguna was saying that the katiba cannot be changed legally before 2012.

That is a lie...and it's not me saying it - its the katiba itself which is saying that it can be amended before 2012.

So stop sugarcoating Miguna's words.

Saying that Bunge cannot change the katiba is another lie. It can.

We however know that even though it has the legal ability, it would be difficult to amend given the political environment.

I also want to address myself to the notion that since the katiba was passed just last week, then kenyans somehow do not have the right to ask for amendments.

A katiba is not a general election where we all know the election cycle happens after every 5 years.

So that if i elect someone today and i get unhappy with him tomorrow I have to wait for another 5 years for me to exercise my right to vote him out.

The katiba has no amendment time lines - it is a living document that will change along with the will of the people.

So if i have a problem with some of the contents today, I have the constitutional right to seek those amendments which make me satisfied.

If you voted for the same katiba that i did, then you know as well as i do that it allows for anyone to seek any amendment that he seeks.

And that is the law Adongo.

Otherwise show me the clause that tells me I have to wait for X years before I or anyone else can seek amendments.

And if you cannot show me that clause, everything else you are saying is meaningless.

Passing a constitution is easy; constitutionalism is hard i tell you!

[tactician]

Roughrider,

I just want to ask you one question:

Please show me a clause in the new katiba that expressly bars anyone from seeking amendments in the katiba simply because X days/weeks/years have passed since Kenyans voted on August 4.

If you show me that clause, I will gladly concede and shout from the rooftops.

If however, you cannot show me any such clause, then it is clear that you are attempting to prevent others from enjoying their constitutional rights to try and amend the katiba.

And don't give me arguments - just point out the law as is established in the new katiba. Anything else is just worthless opinion.

[adongo23456]

tactician,

Parliament cannot change the katiba due to the political realities of the day that you know very well. Let's quit this business of throwing words like "lies' all over the place. The simple reality is that the suckers in bunge could not even change a coma in the Draft after proposing more than 70 amendments. Nobody could get the numbers for any amendment. Where are they going to get the numbers now or are we having a different set of M.Ps.

If you want to amend the Draft then go out there and get 1 million voters to sign a petition then take it to bunge and start the process. Good luck if you want to touch on the matters that require another referendum. You will be going nowhere.

The reason there is all these hullabaloo about amendments even before the new constitution is the law of the land is because there are a lot of political egos out there that have been messed up big time. Some political careers are on the line. Some people need something to hang on to so they can go back to "their" people and claim they delivered something. Tough luck. They had their chances and blew it. The people of Kenya have spoken. Those who want to change the katiba will have to follow the law. It is in black and white now. Hakuna shida. Back door amendments are dead on arrival. Period.

adongo

[tactician]

Aug 10, 2010 16:18:56 GMT 3 adongo23456 said:

tactician,

Parliament cannot change the katiba due to the political realities of the day that you know very well. Let's quit this business of throwing words like "lies' all over the place. The simple reality is that the suckers in bunge could not even change a coma in the Draft after proposing more than 70 amendments. Nobody could get the numbers for any amendment. Where are they going to get the numbers now or are we having a different set of M.Ps.

If you want to amend the Draft then go out there and get 1 million voters to sign a petition then take it to bunge and start the process. Good luck if you want to touch on the matters that require another referendum. You will be going nowhere.

The reason there is all these hullabaloo about amendments even before the new constitution is the law of the land is because there are a lot of political egos out there that have been messed up big time. Some political careers are on the line. Some people need something to hang on to so they can go back to "their" people and claim they delivered something. Tough luck. They had their chances and blew it. The people of Kenya have spoken. Those who want to change the katiba will have to follow the law. It is in black and white now. Hakuna shida. Back door amendments are dead on arrival. Period.

adongo

Adongo,

Perharps I should make it clear to you.

If you post something that is incorrect here, I will point it out and call it a LIE.

Live with it. If you cannot handle being called a liar, then better start posting the truth.

Secondly, the political environment may make it difficult for one ot pass amendments.

That is different from saying that it is legally impossible to pursue amendments to the new katiba.

All I am saying is let those who want amendments bring them to Bunge.

And to correct you, amendments via popular initiative (1m signatures) are not possible until after 2012. But each and every section of the katiba can be amended via Bunge and a referendum for the protected clauses before 2012 and thereafter.

I hope you got it.

[mongobeti]

I think the issue is about whether we make changes immediately or not. What I read from the YES side was that they did not close the door to any changes at a future time. Indeed this is just as it should be, for there is no constitution that is cast in stone. That future can be anything between 1 year to 100 years depending on how fast we settle the so called contentious issues. As our democracy matures Kenyans must come to accept that there will always be 'contentious issues' and that we may never get to the point of resolving them co completely, especially as regards the Kadhi's courts and abortion. In this regard the referendum as settled the issue, perhaps for next generation (or two).

[tactician]

Aug 10, 2010 16:50:24 GMT 3 mongobeti said:

I think the issue is about whether we make changes immediately or not. What I read from the YES side was that they did not close the door to any changes at a future time. Indeed this is just as it should be, for there is no constitution that is cast in stone. That future can be anything between 1 year to 100 years depending on how fast we settle the so called contentious issues. As our democracy matures Kenyans must come to accept that there will always be 'contentious issues' and that we may never get to the point of resolving them co completely, especially as regards the Kadhi's courts and abortion. In this regard the referendum as settled the issue, perhaps for next generation (or two).

Agreed.

My only point was that the only way to know if there is any agreement on the contentious issues is to let any aggrieved person present his amendment to the people (either directly via a referendum or indirectly via the people's elected representatives).

Otherwise, how else shall we ever know that we are in agreement on these issues?

If Kenyans feel one week or one year is too short a period to make amendments, then they surely will make their preference known via the legally established means ie via bunge or referendum.

To otherwise sit behind a monitor and state unequivocally that Kenyans do not want amendments is akin to what we have been experiencing over the years ie wakenya wameamua hawataki multi party or watu wa rift valley wameamua chama ni cha kanu thus intimidating those who have different views.

Let he who has different views place them on the legally established debating parlour and kenyans will speak with their votes just like they did in the referendum.

[adongo23456]

tactician,

I still remember all the chest thumping about how bunge was going to tear up the CoE final Draft and come with their last gig. It came to a big zero. So you guys can go on with the same chest thumping about amendments in bunge yada yada. It will come to another bige zero.

There is no 2/3 capacity of any group to bring any amendment. That is the political reality and you can bank it now. It is good money. OK. The rest is just talking for the sake of doing so. Kenyans are not going to undo what they just did a few days ago. You can call ten referanda if you want to. This is water under the bridge. The constitution will be changed in future but most likely not by this generation. They can tinker here and there when new M.Ps come after 2012 and new political realities emerge. Right now, forget it.

adongo

[kamalet]

Aug 10, 2010 17:18:43 GMT 3 adongo23456 said:

tactician,

I still remember all the chest thumping about how bunge was going to tear up the CoE final Draft and come with their last gig. It came to a big zero. So you guys can go on with the same chest thumping about amendments in bunge yada yada. It will come to another bige zero.

There is no 2/3 capacity of any group to bring any amendment. That is the political reality and you can bank it now. It is good money. OK. The rest is just talking for the sake of doing so. Kenyans are not going to undo what they just did a few days ago. You can call ten referanda if you want to. This is water under the bridge. The constitution will be changed in future but most likely not by this generation. They can tinker here and there when new M.Ps come after 2012 and new political realities emerge. Right now, forget it.

adongo

But it does not change the principle that anyone who wants to make amendments can make application to make them......the point that Tactician has all along been making!

The issue of getting numbers to change is a different issue which even Miguna had not raised!

[tactician]

Aug 10, 2010 17:18:43 GMT 3 adongo23456 said:

tactician,

I still remember all the chest thumping about how bunge was going to tear up the CoE final Draft and come with their last gig. It came to a big zero. So you guys can go on with the same chest thumping about amendments in bunge yada yada. It will come to another bige zero.

There is no 2/3 capacity of any group to bring any amendment. That is the political reality and you can bank it now. It is good money. OK. The rest is just talking for the sake of doing so. Kenyans are not going to undo what they just did a few days ago. You can call ten referanda if you want to. This is water under the bridge. The constitution will be changed in future but most likely not by this generation. They can tinker here and there when new M.Ps come after 2012 and new political realities emerge. Right now, forget it.

adongo

If it will indeed be a big zero, then why should you protest about it?

Let those who have the zeal to try and make amendments go ahead and get their big zero.

I just don't see why their efforts to make changes should make anyone worried then.

Saying it like Miguna is saying that such kind of people do not even have a legal way or right to make amendments are the kind of political thuggery that I cannot stomach.

[tactician]

Aug 10, 2010 17:26:21 GMT 3 kamalet said:

Aug 10, 2010 17:18:43 GMT 3 adongo23456 said:

tactician,

I still remember all the chest thumping about how bunge was going to tear up the CoE final Draft and come with their last gig. It came to a big zero. So you guys can go on with the same chest thumping about amendments in bunge yada yada. It will come to another bige zero.

There is no 2/3 capacity of any group to bring any amendment. That is the political reality and you can bank it now. It is good money. OK. The rest is just talking for the sake of doing so. Kenyans are not going to undo what they just did a few days ago. You can call ten referanda if you want to. This is water under the bridge. The constitution will be changed in future but most likely not by this generation. They can tinker here and there when new M.Ps come after 2012 and new political realities emerge. Right now, forget it.

adongo

But it does not change the principle that anyone who wants to make amendments can make application to make them......the point that Tactician has all along been making!

The issue of getting numbers to change is a different issue which even Miguna had not raised!

Kamalet,

I dunno why the principle is so hard to get.

But then I guess the new katiba will not peel off the scales of dictatorial tendencies any time soon.

And by the way, I challenged them to quote any section of the proposed katiba that bars anyone from seeking amendments simply cos it is too soon.

I have not heard a reply on this since.

Implying that there is no such clause and the suggestion is nothing but seeking extra legal means and arguments to stop other citizens constitutional rights.

And we claim they fought for this new katiba yet we cannot uphold the very basic constitutional rights contained therein.

I tell you again that passing the katiba was easy.

Immersing the minds of kenyans into the spirit of what the katiba contains is another battle that will take ages.

[federa]

I am starting to worry about Bw. Miguna Miguna. I think he is starting to pen articles without giving them much thought. The inaccuracies pointed out in his latest article are the sort that might lower the esteem with many have regarded him. I know that he is expressing his personal opinion, but as the advisor to the PM, he owes it to himself and to his position to be more dilligent and accurate with what he writes. He should also stop ruffling feathers unnecessarily.

[adongo23456]

kamale & tactician,

My point in this thread has been very clear. The political realities are such that there can no amendment in the katiba at this time. I don't speak for Miguna. I am just saying that if the politicians could amend the katiba, they could have do so before the referendum. They couldn't then and they can't now.

I think the only item they could tinker with in future would be on the abortion thing because our women M.Ps like Beth Mugo have no clue about protecting the rights of Kenyan women. Other than that there is nothing that will be touched in that katiba for a very long time. That is the political terrain we have to deal with.

adongo

[tactician]

Aug 10, 2010 17:40:58 GMT 3 adongo23456 said:

kamale & tactician,

My point in this thread has been very clear. The political realities are such that there can no amendment in the katiba at this time. I don't speak for Miguna. I am just saying that if the politicians could amend the katiba, they could have do so before the referendum. They couldn't then and they can't now. I think the only item they could tinker with in future would be on the abortion thing because our women M.Ps like Beth Mugo have no clue about protecting the rights of Kenyan women. Other than that there is nothing that will be touched in that katiba for a very long time. That is the political terrain we have to deal with.

adongo

Agreed Adongo,

And all am saying is that, contrary to the lies Miguna is peddling, it is patently untrue that it is not possible to seek amendments.

Amendments can be sought legally and constitutionally as the new katiba clearly points out.

Whether they will pass is another matter altogether in which Kenyans will have a say.

In summary, let those who want amendments bring them along and they should not be afraidor cowed by anybody irrespective of his station in society.

We, as Kenyans, shall debate these proposed amendments and either retain the consensus we have right now as is spelt out in the new katiba or adopt a new consensus.

End of story

[kamalet]

Aug 10, 2010 17:40:58 GMT 3 adongo23456 said:

kamale & tactician,

My point in this thread has been very clear. The political realities are such that there can no amendment in the katiba at this time. I don't speak for Miguna. I am just saying that if the politicians could amend the katiba, they could have do so before the referendum. They couldn't then and they can't now.

I think the only item they could tinker with in future would be on the abortion thing because our women M.Ps like Beth Mugo have no clue about protecting the rights of Kenyan women. Other than that there is nothing that will be touched in that katiba for a very long time. That is the political terrain we have to deal with.

adongo

Adongo

I think the issue all along was not political reality, but the exact position of the law which is where this debate has been anchored! The author of this thread purported to read the law in telling us that we could not change this thing until after the 2012 elections and which is what has been in dispute!

I actually think the concerns of a lot of the Yes politicians was the risk of stalling the process with disagreement on a few issues rather than giving the draft a blanket approval or rejection. This perhaps informed the failure to agree prior to the referendum. On this we can argue for days on end, but it is not the import of the thread, unfortunately!

[adongo23456]

Kamale,

The legal technicalities are one thing. I have actually not checked to determine whether Miguna's interpretation of the law is right or wrong. I actually wouldn't call any interpretation of the law whether right or wrong a lie. It is just an interpretation. But that is not important.

The big story is that we have to deal with reality. If you tell me it is possible to swim in a lake you are right, but I would be foolish to jump into that lake if I do not know how to swim. Yes it is possible to swim in a lake but you have to know how to swim or you are going to drown in there.

adongo