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Fully implement 2010 Constitution Image: OZONE

Politicians are like the rest of us in that they seem unable to take a position and stick to it, no matter the consequences.

Around the world, they just can't help themselves when it comes to tinkering with constitutions. 

When they don’t like a thing or it doesn’t suit their whims, then it is time to change the constitution. 

In Kenya, where the ripples from the latest bout of constitution fiddling are still being felt, we've been messing about with the rules that govern us from the very start.

I say we, but I actually mean they, our political masters. 

Of course, it didn’t help that the very first constitution we had was a mishmash of influences and had very little input from Kenyans.

A Time Magazine report on the Lancaster House constitutional talks of February 1960 put it thus: “While the delegates engulfed each other with long speeches, US lawyer Thurgood Marshall was hard at work behind the scenes.”

Marshall was on leave from the US civil rights body, the National Association for the Advancement of Coloured People (NAACP), and was working as special adviser to the 14 elected African members of Kenya’s Legco at the conference.

According to Time Magazine's writer: “Arming himself with 'almost anything I can get my hands on', Marshall sat in his cheerless Piccadilly Hotel room, poring over the US Bill of Rights, the Universal Declaration of Human Rights, the constitutions of Nigeria, Uganda and Tanganyika. 

“Although he has appeared often and successfully to argue Negro causes before the US Supreme Court, Marshall is faced with one difficulty: he has had no experience of British law. His solution: to draft the constitution in US legal terms and then consult the Colonial Office, which will 'translate' it into the proper British terminology.”

Armed with hindsight, and we all know how wonderful that is; it is easy to see how this “mixed grill” was always going to end in tears for Kenyans. And it did, pretty much.   

Even the 2010 Constitution, which we were conned into thinking came about through a people-driven process, was all about the politics. 

We were conned because while the people may have demanded it and insisted on certain things, such as Chapter Six and the recall clause, we have allowed the politicians carte blanche to either ignore or change it.

Look at Chapter Six, for instance.

The Constitution of Kenya, 2010 provides, under Chapter 6, for leadership and integrity of all public officers. 

This means that under the Constitution, those whose conduct does not bring honour, public confidence and integrity have no place in the management of public affairs.

While we the people may have once thought it was vital, we have allowed the politicians to wear us down to the point where we don’t even seem bothered to pretend that it matters anymore.

If you think I'm being unfair, just look at the people we've put into positions of authority through the ballot since the 2010 Constitution came into effect and tell me honestly how many of them would pass the test of Chapter Six.

Maybe when things come to a head again, we can rely on the courts and a few conscientious members of civil society to pull us out of the morass. 

Meanwhile, here in South Africa, things are no different. When politicians here are unable or unwilling to deal with a constitutional requirement, they ignore it in the hope that it will go away, and when that doesn’t work, they change it.

The Constitution has been amended 17 times since its adoption in 1996.

Some amendments such as the eighth, ninth and tenth, seemed overtly beneficial to the politicians. These three amendments from 2002 effectively allowed legislators to cross the floor without losing their elected position.  

These changes were, however, repealed by the 14th and 15th amendment, which came into force in 2009. 

To me, these flip-flops just show that, like the rest of us, our political masters cannot make up their minds.  By Mwangi Githangu, The Star

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