Although several attempts have been made to amend the Constitution of Kenya since its promulgation in 2010, none of them has been successful.
The failure may partly be explained by the stringent amendment procedures set out in the Constitution.
The 2010 document sought to create a rigid governance framework, so as to avoid the pitfalls of the former Constitution which was often changed at the whim of the Executive.
Chapter 16 of the 2010 charter sets out the manner in which the document may be amended. A proposal to alter the Constitution may be initiated in two ways: first, through the National Assembly or Senate, and second by way of a popular initiative.
There are, however, some 10 matters that cannot be changed without approval by a referendum. These are: the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance; the Bill of Rights; the term of office of the President; the independence of the Judiciary and independent commissions/offices; the functions of Parliament; the objects, principles and structure of devolved government; and the provisions of chapter 16.
An amendment through parliamentary initiative may be launched either in the National Assembly or in the Senate. After the Bill is read in either House for the first time, it must be publicised and public discussion on the Bill facilitated. It cannot be taken through the second reading in less than 90 days.
The Bill must receive the support of at least two-thirds of the members of the first House at both the second and the third readings before it is sent to the other House for approval through a similar process.
If both Houses pass it, then the two Speakers will jointly submit it to the President for assent and publication. But if the Bill touches on any of the ten entrenched matters mentioned above, the President must request the Independent Electoral and Boundaries Commission to conduct a referendum within 90 days.
In order for a referendum to be successful, there must be a voter turn-out of at least 20 per cent in not less than 24 counties and more than half of all the votes cast must support the amendment. Within 30 days of a successful referendum, the chairperson of IEBC will send the Bill to the President for assent and publication.
An amendment by popular initiative begins with the collection of at least one million signatures of registered voters. The promoters of the initiative will then send a draft Bill together with the supporting signatures to IEBC for verification.
IEBC will thereafter submit the Bill to all the 47 county assemblies for consideration within three months. If at least 24 county assemblies pass it, the Bill will then be taken to Parliament for debate and voting.
The Bill must be supported by a simple majority of all the members of each House. If both Houses approve the Bill, it is sent to the President for assent and publication but if it relates to any of the 10 entrenched matters, then the President must send it to IEBC for a referendum to be organised before it can be assented to. Likewise, if only one House passes the Bill, it must go to a referendum, irrespective of the content of the Bill.
It is clear from the above analysis that amending the Constitution is a fairly lengthy and onerous process.
The idea is to protect the document from whimsical tinkering by the political class.