“A written Constitution is the legislation or compact which establishes the State itself…it is a document of immense dimensions, portraying, as it does, the vision of the peoples’ future. The makers of a Constitution do not intend that it is amended as often as other legislation; indeed, it is not unusual for provisions of the Constitution to be made amendable only by special procedures, imposing more difficult forms and heavier majorities of the members of the legislature’ – Amissah P in “Attorney-General v Dow (1992) B.L.R 199 at 129”
If politicians had their way with the Constitution, we would barely recognise the document. Indeed, there has been no shortage of proposed amendments to the constitution of Kenya 2010 since its enactment. This is in spite of warnings from experts about the dangers of constitutional mutilation at such an early stage.
It is perhaps because of this imminent danger that the drafters of our supreme law saw it fit to insulate certain aspects of the Constitution from whimsical amendments. The Constitution of Kenya, in Article 255(1), provides that a proposed amendment to the Constitution must be approved by a referendum (as opposed to Parliament alone) if it relates to any of the following matters: (a) the supremacy of the Constitution, (b) the territory of Kenya, (c) the sovereignty of the people, (d) the national values and principles of governance mentioned in Article 10, (e) the Bill of Rights, (f) the term of office of the President, (g) the independence of the Judiciary and the commissions and independent offices, (h) the functions of Parliament, (i) the objects, principles and structure of devolved government or (j) the provisions of Chapter 16.
Thus, our Constitution ensures that, in regard to the above aspects, amendment is fairly hard. We are not alone. Other countries’ Constitutions as well impose hurdles regarding constitutional amendment. Take the Constitution of Zambia, which requires that a constitutional amendment bill must be approved in a referendum in which at least 50 per cent of the registered voters participated (Article 79). The Ghanaian Constitution sets the bar even higher. It provides in Article 290(4) that regarding certain provisions, amendment must be approved by a referendum in which at least 40 percent of the registered voters vote, and at least 75 percent of those who vote favour the amendment.
As has been observed by Professor Charles Manga Fombad, a major cause of political and constitutional instability in post-independence Africa was the ease with which political leaders subverted constitutionalism by arbitrarily changing constitutions to suit their political agendas. During the constitutional reforms of the 1990s, many provisions were introduced in most African constitutions aimed at limiting the ability of governments to abusively change constitutions. It is the aim of this article to show the wisdom behind hard-to- amend constitutions, and why the clamour to amend our Constitution is misguided.
One of the most enduring legal minds of the 20th century, Lon Fuller, in his work “The Morality of Law” [Yale University Press (1969) P.39] presents “the 8 routes to disaster” for any legal system. Fuller uses an entertaining fictitious example of a King, Rex, who attempts to rule but fails because of 8 major flaws in his legal regime. A presence of any such defects does not merely result in a bad system of law; according to Fuller, it results in something that is not properly called a legal system at all. One of such flaws, fuller explains, is changing laws so rapidly that it becomes impossible for people to adjust their behaviour to the laws. Such is our challenge, grappling with amendments only five years after promulgation.
Another scholar has noted, “Superiority and stability are the elements which detach the Constitution from the daily political developments and even from elected politicians, which enables and ensures the stability of the democratic system itself. Therefore, a stable constitution ensures that some fundamental structures of the state stay above politics and ensure the intangibility of the state system, regardless of the electoral results or of the political parties winning the elections.” The lesson drawn here is that laws should remain constant through time to enable people anticipate the consequences of their actions.
Short term passion
As is often emphasised, “Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in their day of frenzy.” A quite widely used metaphor is that of Ulysses, ordering in advance his crew to tie him to the mast in order not to be tempted by the song of the Sirens. In the same way, society, by adopting a rigid constitution, “ties itself to the mast”, in order not to be tempted or distorted by short-term political gains and passions [European Commission for Democracy through Law Report on Constitutional Amendment (2009)].
This is further elaborated by Yaniv Roznai in “Unconstitutional Constitutional Amendments: A study of the Nature and Limits of Constitutional Amendment Powers” (2014) where he says: “An easy amendment process places fundamental principles and institutions at risk of being swept away by majorities momentarily fascinated by a new idea.”
Another argument made in favour of a rigid constitution is that a constitution will lose its majesty as the supreme law and the very embodiment of the will of the people if it is frequently and arbitrarily changed. The reasoning is that a “cluttered” Constitution will not command respect. This is articulated by Joseph Long who, in lamenting the numerous amendments to state Constitutions, remarked, inter alia, “…not only are they subject to constant change, but they have long since ceased to be Constitutions in a true sense…no one now entertains any particular respect for state constitutions. It has little more dignity than an ordinary act of legislation…”
According to constitutional theorists, a constitution is not merely a set of laws, but also a political charter. Besides the important role constitutions play in defining and limiting government structures, some believe that constitutions play a critical role in “constituting” the polity. It is argued that by serving as a national symbol, constitutions can help instil in the citizenry a sense of shared identity.
“A strong attachment to the state, whatever its pathologies, is critical to democracy. This is especially a concern in multi-ethnic states in which the state competes with other groups for loyalty. If citizens do not have a commitment to, or cannot agree on, the sovereignty of the state, then the very basis for participation and citizenship unravels…” [Zachary Elkins, Tom Ginsburg, Tom Melton in “The Endurance of National Constitutions”]
One will appreciate that in Kenya, voters even in a national referendum are divided primarily along ethnic lines. That lack of objectivity is toxic to national unity; hence the need to refrain from unnecessary and politically motivated amendments to the Constitution.
Granted, no Constitution is flawless. It is perhaps Professor Fombad who puts it best when he says: “Despite their expertise, scholarship and best efforts, the constitutional designers are ordinary human beings who are neither perfect nor omniscient.” In relation to this, Thomas Jefferson wrote, in an 1816 letter, that “one should not believe that a generation is not as capable as another of taking care of itself, and of ordering its own affairs” and that “the dead should not govern the living.” Thus, it is in the best interest of a citizenry that a constitution be amended from time to time as circumstances may require. However, the amendment power should not be abused to further the interests of a few. In a quest to guard against such abuses, our constitution is accordingly rigid. Long may it remain so.