Why push to amend Constitution isn’t just another political theatre

By Makau Mutua Updated Saturday, September 6th 2014 at 22:49 GMT +3

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As pure political theatre, the calls for a referendum – to amend the Constitution – are either exhilarating, or unnerving. That’s because beauty lies in the eye of the beholder.
To the CORD brigade and hoi polloi, it’s payback time. But to Jubilee mandarins and their retinue, it’s the dragon of Opposition doyen Raila Odinga coming back to haunt them.

Some read in it the incessant Kenyatta-Odinga family feud – and competition for state power. I am no shrink, but I can guarantee this – the scions of Mzee Jomo Kenyatta and Jaramogi Oginga Odinga will never sing kumbaya.
 But this is only one lens. The other – more compelling – pits liberalism against illiberalism. That’s why Mr Odinga and Mr Kenyatta are on opposite sides.
Let me be cynical for a moment. One can see why Mr Odinga and the “Odingalets” –Wiper leader Kalonzo Musyoka and Senator Moses Wetang’ula – are salivating over a referendum. They are out of power in the political cold. Their relevance depends on rocking the Jubilee boat from without. They want to give Mr Kenyatta and his corner sleepless nights.
 I have no doubt they are driving many Jubilee supremos to the doctor with high blood pressure. This is politics in high noon. You know what they say – get the hell out of the kitchen if you can’t stand the heat. Just like boys will be boys, politicians will be politicians. Don’t expect them to be priests or nuns.

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In every democracy, even Kenya’s, the Opposition must find a reason for existence. Similarly, the ruling side must project an image of stability and progress. But those are just appearances. You have to kick the tyres hard to find out if they are pregnant with air. That’s because you never know – it could all be hot air.
Are the politicians simply playing power and mind games, or is there a “there, there?” Which begs the question – does the Kenya Constitution actually need to be amended? It doesn’t matter what the hoi polloi think because they are putty in the hands of politicians. The masses will follow their masters like a herd. Don’t argue here.
Let me give you some serious history. The United States was born on July 4, 1776. It is 238 years old. Kenya was born on December 12, 1964. It is 50 years old. Over 11,500 proposals have been offered to amend the US Constitution, but only 27 have been ratified. Roughly 200 proposals are mooted by Members of Congress every two years, but virtually all die on the vine.
 That’s because it’s exceedingly difficult – but not impossible – to amend the US Constitution. The constitutional roadblocks and barriers are many and huge. That’s as it should be because the Constitution isn’t just a sheet of paper. But citizens have the right – and the civic obligation – to seek amendments if they so choose.

That’s why no one should panic – or start imagining that devils are coming to get him – just because Mr Odinga and CORD are seeking a referendum to rewrite the national charter.  Some Jubilee bloviators – like Majority Leader Aden Duale and his Senate counterpart Professor Kithure Kindiki – must stop panicking. Deputy President William Ruto must similarly stop breathing fire and brimstone every time he hears the word referendum

Just for the avoidance of doubt, let me remind Mr Ruto that the word “ referendum” is a democratic word. It means a people’s plebiscite. It’s from the Latin verb “refero” which means “bringing the question back to the people”. Nothing could be more democratic than a referendum. I hope referendum refuseniks are reading this.
My point is that it doesn’t matter whether Mr Odinga and his crew are just playing politics, or have genuine concerns that require constitutional correction. It’s their democratic right to invoke every clause, comma, and verb in the Constitution. Those who are not guilty need not be afraid. I am not one who believes that the Constitution is either sacred, or sacrosanct.

 But it’s the most important social contract between a state and those who live under its roof. It’s a fallible document because mere mortals – in Kenya’s case a crass political class – cobbled it together. It has many flaws, although it’s still one of the most progressive constitutions in the world. But Mr Ruto vigorously opposed it.
Methinks Mr Ruto and those who oppose the referendum are being hypocritical. Why doesn’t he join the train and ask the people to amend the provisions that he so violently opposed in 2010? How can the Constitution that he decried so hard just four years now be perfect?
Could it be that he’s in power now and nothing else matters to him? This is what I say to the anti- referendum crowd – stop being afraid of your own shadow because that’s the people behind you. Let the people speak.