Unnecessary and Undesirable: PLO Lumumba Shreds Proposed Kenya Constitutional Amendments, Here is Why

Legal Scholar Prof PLO Lumumba who has said that the proposed amendments to the Constitution of Kenya 2010 are unnecessary and undesirable. PHOTO/Courtesy.
  • President William Ruto has criticised the amendments for potentially consolidating power within the executive branch.
  • Prof. Lumumba has compared the undesirable issues with what happens in other jurisdictions including the United States, the United Kingdom and France, which have some of the foremost Constitutions in the world.
  • The legal scholar is also uneasy with the proposed amendment to codify in the Constitution the positions of the Leader of Majority Party and the Leader of Minority Party in each House of Parliament.

One of Kenya’s top legal scholars, Patrick Loch Otieno (PLO) Lumumba has presented his reservations on the proposed Constitution of Kenya Amendment Bill, 2024.

In his memorandum addressed to Clerk of the Senate, Jeremiah Nyegenye, and marked as “urgent”, Prof. Lumumba says the proposed amendments are unnecessary and undesirable.

He conspicuously takes issue with the proposal to extend the terms of office for the President, Governors, Senators, Members of Parliament (MP), and Members of County Assemblies (MCAs) from five to seven years, “which runs counter to the principle of regular accountability through elections.”

“…the Bill seeks to introduce the office of the Prime Minister, a proposal that appears unrelated to the core objectives of the amendments raising questions about the coherence of the proposed changes in relation to their stated purpose,” Prof. Lumumba notes.

He has listed 29 undesirable proposed amendments in the Bill, which includes an amendment to extend the National Assembly’s authority over the declaration and oversight of a State of Emergency to the Senate and amendment to extend the Senate’s mandate to include the supervision of all revenue raised by County Governments.

Prof. Lumumba is also uneasy with the proposed amendment to codify in the Constitution the positions of the Leader of Majority Party and the Leader of Minority Party in each House of Parliament.

The Bill, which is being fronted by Nandi Senator, Samson Cherargei wa subjected to public participation, to gather views from Kenyans.

It also proposes an amendment to Article 181(2) of the Constitution to introduce a detailed procedure for the removal of a County Governor from office, a matter that Prof. Lumumba finds unnecessary as it seeks to include procedural details that can easily be enacted by Parliament through legislation without altering the Constitution itself.

 “Amendment to increase the equitable share of the revenue raised nationally that is allocated to County Governments from the current 15% to 40% is not necessary as the Constitution only provides for the minimum percentage of national revenue to be shared with the County Governments,” he says in his memorandum.

Other issues that the legal scholar says can be addressed without amending the Constitution include the introduction of an Article that requires questions relating to the validity of the removal of a governor to be filed in the Supreme Court and be determined within 30 days.

Prof. Lumumba has compared the undesirable issues with what happens in other jurisdictions including the United States, the United Kingdom and France, which have some of the foremost Constitutions in the world.

“In France, the President’s term was originally seven years but was reduced to five in the year 2000. The reduction was motivated by the need for more frequent accountability through elections,” he says in the 27 page document.

The lawyer notes that many democracies around the world have opted for shorter electoral cycles to maintain government responsiveness to the electorate, an example being the US where presidential elections are done after every four years.

Prof. Lumumba says the country’s leadership suffers from chronic deficiency of will, necessary to implement the laws and policies that are already in place.

Nandi Senator Samson Kiprotich Cherargei who has sponsored the motion proposing a raft of amendments to the Constitution of Kenya 2010. PHOTO/Senator Cherargei.

“What we need is not more laws but the genuine commitment to uphold and enforce the ones we already have,” he says.

The vocal legal scholar says Kenyans must embrace and practice exemplary leadership grounded in integrity, accountability and the genuine commitment to the public good.

He argues that some of the proposed amendments will blur the roles assigned to the National Assembly and the Senate, and as a consequence undermine devolution.

In his view, Prof. Lumumba says that the Constitution of Kenya 2010 needs review and amendments in a number of areas including the architecture of Devolved Government, Executive, Legislature and a number of constitutional commissions, Commissions and Independent Offices.

“Such review when initialised should be undertaken in an orderly manner that involves public participation, which is not perfunctory,” Prof. Lumumba states in the memorandum dated October 25, 2024.

The proposed amendments have elicited serious reactions from Kenyans in recent days, with some circulating forms online and asking fellow citizens to reject the idea and submit their comments electronically to the Senate.

Prof. Lumumba is the latest entrant in the list of influential personalities who have vehemently opposed the proposed patching of the Constitution.

President William Ruto has criticised the amendments for potentially consolidating power within the executive branch.

Dr. Ruto warns that such changes could “lead to an imbalance in the separation of powers, weakening the checks and balances essential for a healthy democracy.”

Dr. Ruto’s top competitor in 2022 elections, Raila Odinga, emphasises the need for unity and inclusivity in governance.

Odinga who appears to enjoy Dr. Ruto’s support as he guns for the African Union Commission (AUC) chairmanship argues that the proposed changes may deepen divisions among communities rather than foster collaboration.

The Leader of the Majority in the National Assembly Kimani Ichung’wah has also distanced himself from the Bill, which is being sponsored by a member of his party.

Leaders from various civil society organisations have also raised alarm about the lack of adequate public consultation over the proposed changes to the supreme law.

They argue that significant constitutional changes should involve broad public engagement to ensure that the voices of ordinary citizens are heard.

Busia Senator Okiya Omtatah, has been urging Kenyans to stay vigilant, lest the proposed amendments see the light of the day.

This sentiment underscores a commitment to participatory democracy, which many feel is being compromised.

The Standard Media, has since reported that a showdown is looming in parliament after the Orange Democratic Movement (ODM) party laid bare its plan to shoot down the controversial amendment, terming it an insult to Kenyans

Party Secretary General Edwin Sifuna, Deputy Party Leader Godfrey Osotsi and Kakamega Governor Fernandes Barasa, who is also County ODM Chairman also scoffed at the proposal.

The ODM party has urged the Senate to reject the 7-year-term limit proposal which seeks to extend the tenure of elected leaders stating that it offends the constitution’s basic structure.

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The party’s Executive Director Odour Ong’wen stated that  the proposal poses a threat to the nation’s democracy and that the Senate should reject it completely.

“We urge the Senate to reject this Bill and uphold the principles of good governance, the rule of law and the constitutional requirement for genuine public participation through a public referendum,” said.

Church leaders, including the Anglican Church’s Jackson Ole Sapit have also added their dissenting voices into the discourse.

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Mr. Araka is the pioneer reporter and editor at The Scholar. His satirical segment, The Idler's Corner is very popular with our readers. He is also a published novelist and biographer.

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