Modifying the Constitution without a referendum


By Edwin Musonye and Patrick Musindi

The word referendum has been made to mean-constitution modifying process. In most laymen (and even expert) discussions, there is intimation that modifying the document by the popular initiative must involve the referendum exercise. But, this is not necessarily the case. In fact, the plebiscite is the furthest last resort.

Going by a commonplace opinion, the document is 20 percent faulty. Unfortunately, the defective provisions are unknown. Therefore, concerned parties suggest arbitrary issue – those peculiar only to them. Determining what will be universally accepted as being the ‘real’ inadequacy, in our humble estimation, may take a while – especially under the current unstandardised conceptualisation.

The document lacks technique. It makes semantic assumptions that threaten the gains being sought. The word ‘amendment ‘– which is a powerful term, is used loosely to imply modifying the document. Whereas, the American constitution uses it to mean progressive additions/enrichments, our earlier constitution used it to mean any modification (progressive or retrogressive).

Given this historical background, Chapter 16 on ‘AMENDMENT OF THIS CONSTITUTION’ may need an explanatory appendage to inform what amendment means/implies.

Furthermore, the drafters wrote the document in a report and proposal mode instead of a manual mode. The same fate befalls the Company Act and many statutes that create our corporate bodies. They were bent on putting words on paper than setting up a working system. The drafting experts may have lacked effective constitution-making architecture (or technical communication) skills.

To guard against making reversals on gains made, it may be prudent to differentiate levels of modifying the document by bringing in definitions as follows,
Change/Replace: The coming up of a new document that has plethora of revisions alterations, and/or amendments that is meant to substitute completely the existing document.

Amendment: That addendum that reinforces or enhances a provision contained in the Bill of Rights; or introduces a new right to the existing Bill of Rights.

Alteration: The adding, moving, or removing of an elected representative office / function; or responsibilities to that office / function.

Adjustment: The adding, moving, or removing of a constitutional office / function; or responsibilities to that office / function.

Revision: The modifying of wordings; or rephrasing parts or sections of the existing document as to enhance clarity and/or concision. But, the revision must not affect the original intention.

Modification: All the above
Article 255 (1) (a) – (j) [under Chapter 16] lists the ‘protected 10 matters’ that require a referendum to be modified. Whereas, it made sense earlier to simply lump them up, we now have benefit of time and experience to re-examine and improve upon them as follows,
As we strive to advance our democracy and systems of governance, we must equally develop intellectual devices that will actualise and protect that progress. Our constitution is presumed to be 80 percent good; inexpert tampering with it may result in a worse product.

The popular sentiments stating that we need a referendum to bring variation confirm that many haven’t understood the current document. The diagram below shows when a plebiscite comes in handy; otherwise, if a majority of County Assemblies and both houses of Parliament are ‘well whipped’, a modification can sail through without
bothering the citizenry – except the ‘protected 10 matters’.



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