A Constitutional Coup and the Constituent Power

The attempted coup

In an attempt to save a philosophy that had caused so much harm in his country; he found himself surrounded by enemies. Gorbachev had witnessed his country head in the wrong direction and decided to champion two reform agendas. First, perestroika, a restructuring of the Soviet economic system which added new economic liberties. Second, glasnost, motivated by political openness and would usher greater political and historical honesty. These changes made some Soviet leaders uncomfortable. In their eyes, the Soviet system was crumbling and if they did not stop the reform agenda a Pandora's Box of uncontrollable events would overtake them. Gorbachev had to be stopped.

On August 18, 1991, Gorbachev would be forcibly held in a summer home while on vacation. The coup plotters would then try to capture and possibly kill Boris Yeltsin the president of the Russian Soviet Federative Republic. Either by luck or poor planning from the conspirators, Yeltsin eluded the kidnappers and found refuge in the Russian parliament.

Effective coups almost always involve the successful capture of communication facilities so as to control the narrative. These particular coup plotters failed to do so. This lapse in planning provided Yeltsin an opportunity to rally support against the hostile takeover. Russians from different demographics would answer the call to fight for freedom. One particular group, the grandmothers went up to the soldiers and asked, "Are you going to shoot your mother, your father, your grandmother?" The soldiers would eventually refuse to obey orders to seize the Russian parliament building. It was all over after 72 hours of uncertainty.

The Constitutional Coup

After Kenya attained independence, the 1963 independence Constitution was to usher Kenya into a period of self-rule and prosperity. The political class gradually understood that they could get what they wanted easily by amending the constitution. Their appetite for more power and unfettered access to resources grew stronger and stronger.

The results were massive corruption, a police force used to oppress, and a subordinate judiciary serving the interest of the executive. Between 1964 and 1991 there were 26 constitutional amendments. These hyper-amendments left the constitution hollow, and without supremacy or identity. The constitution was full of decay like a child who had ravaged sweets with no supervision or questioning.

The clamour for constitution change would peak in the early 1990s, coinciding with the fall of the Berlin wall and political changes in the Soviet Union. Just as in the Soviet Union, some KANU loyalists saw accepting changes such as multi-party rule would open a Pandora's Box and would compromise their grip on power.

The party loyalists were right because, from that point forward religious organisations, civil society organisations, grassroots leaders, and opposition leaders would strive for a participatory constitution building process.

By 2002, the Constitution of Kenya Review Commission had done commendable work in regards to the draft Constitution of 2002, but President Moi scuttled the constitution review process by dissolving parliament. Such political interference was also experienced when then-President Mwai Kibaki facilitated a process of revision of the Bomas Draft by the political elite. This resulted in the 2005 Wako Draft. This draft was subjected to a referendum in 2005 and was defeated by a 16% margin.

The Committee of Experts on Constitutional Review collated a total of 26, 451 memoranda and presentations from members of the public. Of these 5,212 were from organised groups (2073 from civil society organisations (CSOs) and 107 from women’s groups), 88 from political parties, 50 from the private sector, 2969 from religious organizations, and 32 from statutory bodies. This was clearly a citizen-centric process that assured meaningful participation in the drafting of the Constitution of Kenya 2010.

President Uhuru Kenyatta, just like his predecessor would be blamed for leading an elitist attempt to change the constitution through the BBI Steering Committee. The High Court would find, "It is, therefore, quite clear that what has been presented as a Popular Initiative to amend the Constitution is, in reality, the Presidency’s initiative which is certainly contrary to Article 257 of the Constitution. To the extent that the BBI Steering Committee was created to perpetuate what is clearly an unconstitutional purpose, it is an unlawful, and at any rate, an unconstitutional outfit."

The Constituent Power

From independence up to the 90s power had been systematically stripped from the people. While the Constitution of Kenya 2010 was being drafted they understood the need to protect the constitution against indiscriminate amendments and ensure the will of the people is what drives amendments in the future.

A culture of hyper-amendments had crept into the history of Kenya and it was the Constitution of Kenya, 2010 which has wrestled back the constituent power. Some in the political class have refused to wake up to this reality and are stuck in the past. One could see by how they reacted to the judgment by both the High Court and the Court of Appeal. It wasn't an honest reflection of what was said rather a 'How dare they refuse us' attitude.

Like the defiant Soviet leaders who tried to stop the reforms in the Soviet Union, some leaders in Kenya have refused to embrace the changes brought about by the Constitution of Kenya 2010. The days of absolute power wielded by the executive have passed and it's about time we caught up to what the Constitution of Kenya, 2010 envisioned.