OPINION: Let the Constitution benefit from the Reverence of Time

By Dr. Asande Felix Makori and Dr. Johana Kambo Gathongo

There is evidence that everyday recourse to amendment would mean that the Constitution is fatally flawed.

A Constitution should be allowed to benefit from that reverence which time bequeaths on every thing, and that this reverence augments government stability.

The most severe menace of recurrent constitutional change through amendment is that of upsetting public harmony by powerful exciting public passions.

The laudable deliberation and reflection that had attended the adoption of 2010 Constitution was due to the unique sacrifices and demands of the time.

It’s doubtful whether those circumstances would repeat, therefore, regular and common remedy to amendment would engage the public passions rather than its reason.

Mechanisms for amendment guard similarly against that excessive ability which would leave the Constitution too changeable and vulnerable; and that intense complexity which might perpetuate its naked flaws.

Making amendment of the Constitution fairly simple carries the effect of relentlessly placing the basic structure of the government up for grabs.

Everyday political fixtures might be distorted to mirror constitutional emergencies.

The noble provisions for amendment ought to be resorted to appropriate and only on certain great and extraordinary occasions.

Constituent power could be validly exercised only through the procedures provided for under the Constitution and the people themselves.

These kinds of arguments assign courts an important role in maintaining established and customary grounds of popular constitutionalism, which, provide space for the judiciary to function as the people’s representative in checking governmental excesses, mistakes or abuses.

Judicial supremacy and independence of the judges is equally indispensable to protect the Constitution and the rights of citizens from the effects of those ill humours, which the arts of designing men sometimes propagate among the people themselves.

That the people could alter or abolish their fundamental charter, in no way validates, supports or permits their representatives to infringe on that function whenever a passing proclivity happens to lay hold of a majority of their constituents irreconcilable with the provisions in the existing Constitution.

Except and until suitably amended, a constitution is binding upon the people cooperatively, as well as individually; and no deduction or even knowledge of their sentiments can justify their representatives in a departure from it prior to such an act.

Courts had a responsibility to defy invasions of the constitution, in other words, even if these had been initiated by the major voice of the majority.

This theory places republican governance on the centre stage.

Rather than dumping republican form of government, the solution lies in tethering politics around, to compel and oblige better deliberation and reflection by convoluting the lawmaking process with a gridlock of checks and balances including judicial review.

The objective here is the safeguarding of popular control of constitutional government with a republican therapy for the disorders most episodic to Republican Government.

Judicial review is a valuable tool with which to induce popular re-examination of perhaps unconstitutional actions.

It could be attracted into play in the fairly unusual occasions in which such proceedings moved beyond the Parliament and Senate.

Judicial constructions were no more absolute and obligatory on the people than other branches of state.

Ultimate interpretive authority always and inevitably vests in the sovereign people.

Hence, perilous innovations that might be shaped by ephemeral majorities needs to be checked by judicial review which swiftly and objectively gives place to better information and more calculated reflection.

Does this amount to defending a scheme of judicial supremacy that assigns courts the final say on constitutional intrigues and interpretation while restricting the people’s function to amendment?

The answer is negative due to recognition of the people as the source of all governmental authority in modern constitutional structures.

We the People are the keel of the Arch.

There are numerous major justifications as to why amendment mechanisms are necessary.

First, constitutions ought to be adequately reactive to various political, economic, social, and other future changes.

Constitutions that do not tolerate necessary adaptations are in danger of losing significance.

Certainly, flexible constitutions are likely to pass the test of time.

Furthermore, by providing a non-violent process for change, recourse to aggressive revolution is minimized.

Thus, the amendment process serves as the safety-valve to a nation.

The amendment process enables the rectification of imperfections, faults, or shortcomings that are discovered over a period of time, practice, and experience, thus mirroring the imperfection of human nature.

Constitutions are made here on earth by men, not gods.

Just as constitutions should permit for changes, effortless amendment should not be the rule.

An exaggeratedly lithe constitution might undercut stability and certainty in the constitutional order by supplanting any authentic constitutionalism.

An excessively easy amendment practice places primary principles and institutions at risk of being eroded away by majorities fleetingly captivated with a new proposal, giving rise to suspicions of abuse of the amendment power.

Largely, intense constitutional elasticity is empirically linked with an amplified menace of constitutional failure.

The amendment recipe is then imperative for the balance between stability and change.

However, the rule of change is not simply a technical mechanism of balancing constitutional stability and flexibility.

The amendment procedure incorporates a microcosm of the most fundamental principles of our constitutional structure.

Undeniably, the amendment formula directly embroils the nature of the constitutional system, as it is the realm where law, politics, history and philosophy merge.

Dr. Makori is a Lecturer, School of Law, University of Embu. His contact: fema2005@rediffmail.com

Dr. Gathongo is the Dean, School of Law, University of Embu. His contact: kambo.gathongo@embuni.ac.ke

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