The Process and Safeguards That Protect The Constitution From Arbitrary Amendments by MPs

Nandi Senator Samson Cherargei recently introduced a bill proposing to extend the Presidential term in Kenya from five years to seven years. This Bill, known as the Constitution of Kenya (Amendment) Bill, 2024, aims to amend Article 136 of the Constitution. If passed, it would not only extend the presidential term, but the term for other elected officials like Members of Parliament (MPs), Members of the County Assembly (MCAs) and Governors would also be extended. This Bill also seeks to create the position of Prime Minister, who would be appointed by the President from among the MPs.

Critics have argued that such significant changes to the Constitution should at least be subjected to a public referendum to ensure that the will of the people is taken into account. This begs the question as to whether there are any safeguards within the Constitution designed to protect its integrity and prevent arbitrary changes.

The 2010 Constitution outlines strict procedures and conditions for amending its provisions, ensuring the process isn’t easily manipulated. There are two key routes for constitutional amendments. The Parliamentary Initiative and the Popular Initiative, each with its own restrictions and safeguards.

The Parliamentary Initiative (Article 256):

The Parliamentary Initiative for amending the Constitution is a complex and deliberate process designed to ensure that any changes are made with careful consideration and broad support.

  • Any Member of Parliament can initiate this process by introducing a Bill in either the National Assembly or the Senate.
  • Before its first reading, the Bill must be published in the Kenya Gazette for at least 90 days, during which public participation is mandated through forums, memoranda submissions and stakeholder consultations. This shows the Constitution’s commitment to involving the citizens in governance.
  • Once introduced in Parliament, the Bill will undergo multiple readings and committee review. The committee stage allows for further refinement and public input.
  • To pass, the amendment must secure a two thirds majority in both houses of Parliament. This high threshold of numbers ensures that there is a consensus across political divides.
  • If successful, the Bill will then be presented to the President for assent.
  • There are some provisions in the Constitution that have been protected and as such will require an additional hurdle. Approval by the people through a referendum. Examples are the Bill of Rights and the Presidential term limits.

This multi step process safeguards against hasty or politically motivated changes to the Constitution. It ensures that the Constitution remains adaptable to changing times and needs without being easily altered unless there is thorough deliberation and widespread support from both the legislators and the public.

The Popular Initiative (Article 257):

The public, through the Popular Initiative, can also propose amendments. This process begins with a proposal from the public, rather than from within parliament.

  • To initiate the process, proponents must gather at least 1 million signatures from registered voters. This means that only proposals that have proper public backing can proceed.
  • Once the Independent Electoral and Boundaries Commission (IEBC) verifies the signatures, the proposal is then forwarded to each of Kenya’s 47 County Assemblies for consideration. The proposed amendment must be approved by a majority of the County Assemblies - at least 24 out of the 47- in order to proceed further.
  • If the County Assemblies approve the proposal, it goes to Parliament to be considered by both the National Assembly and the Senate. If Parliament fails to pass it, it will automatically go to a referendum. This was meant to prevent the people’s voice from being silenced by Parliamentary inaction.
  • In the referendum, the proposed amendment will be considered passed if it receives a simple majority of the votes cast, with at least 20% of registered voters in at least half of the counties participating.

The Building Bridges Initiative (BBI) was an attempt at using the Popular Initiative to amend the Constitution. It ultimately didn’t succeed due to legal challenges, but its progress through this process demonstrated the potential and the complexities of this method of Constitutional amendment.

Mandatory Referendum (Article 255):

Certain key areas of the Constitution require a public referendum for any amendment to take place, regardless of whether the amendment is initiated by parliament or the public. These areas include:

  • The Bill of Rights
  • The Term of Office of the President
  • The Functions of Parliament and the County Governments
  • The Independence of the Judiciary
  • The Sovereignty of the People
  • The Territory of Kenya

For these areas, it doesn’t matter whether Parliament supports the amendment by a majority, the people must directly approve it via a referendum.

In summary, while Members of Parliament can initiate Constitutional amendments, they are subject to strict procedural requirements, supermajority votes, potential referendum requirements and even Judicial oversight. These measures have ensured the stability and integrity of the Constitution by preventing arbitrary changes.

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