Epistocracy or Democracy—The Place of the Common Person in Constitutional Amendment in Kenya

Abstract

Epistocracy is the rule by the elite while democracy entails the rule of the people by the people for the people. The common person is supposed to have space to determine how they wish to be governed. Kenya’s constitution provides that all sovereignty belongs to the people. And that such sovereignty can be exercised either directly or indirectly through elected representatives and established institutions. With respect to constitutional amendments, the people can participate through either a popular initiative or a parliamentary initiative. Both routes could eventually require the direct participation of the people through a referendum. In some other jurisdictions, amendment of the constitution is a preserve of the legislature. In others, reference is always made to the common person. In Kenya, the law is not clear on ‘who’ can initiate an amendment to the constitution through the popular initiative. The common person in Kenya is poor; can’t afford necessities of life like food and healthcare; and to some extent, forms a large segment of the illiterate population. The common person relies on the benevolence of the elite and is easily influenced by them to even vote in a certain way. This situation would appear to make the concept of democracy a mirage. This paper examines the place of the common person in various attempts at amending the 2010 Constitution. It is argued that though the common person is legally empowered to participate in constitutional amendments, the reality is that it is the epistographs who determine such constitutional changes. Recommendations on improving the level of participation of the common person in constitutional amendments are postulated to include continuous and enhanced ‘awareness’ seminars as well as improving underlying social conditions such as access to food, health and education.