I just posted a piece over at ConstitutionNet on the politics of popular constitutional amendment provisions, with Kenya as an illustrative case.
The Kenyan Constitution allows for popular (extra-legislative) amendment initiatives, as long as the petitioner can collect at least one million signatures. The Okoa Kenya campaign is one such initiative, but driven primarily by the main opposition alliance, CORD. In the piece I seek to answer two key questions:
…….. (i) how do constitutional popular amendment provisions impact institutional stability?; And (ii) can such provisions maintain their legitimacy when captured by mainstream political parties already represented in key state institutions?
The answers to the first question speak to the dangers of populism. Democratic stability necessarily requires institutional barriers to regular changes of the basic rules of the game (i.e. constitutions), as well as checks on populism. Therefore, by exposing constitutional changes to “every-day politics”, extra-legislative origination of constitutional amendments (under ordinary circumstances) may pose a risk to the very foundations of democratic stability.
The answers to the second question speak to the original intent of popular amendment provisions. Given their extra-legislative character and the notion that they are supposed to preserve popular sovereignty, it is unclear whether popular amendment provisions maintain their integrity when captured by mainstream political parties that are supposed to operate within the legislature. In other words, the potential exploitation of such provisions to circumvent the outcomes of legislative elections may derogate the electoral process itself. Elections should have consequences for both the ruling and opposition parties.