By Edward Kisiang'ani

The Cabinet last week resolved to push a constitutional amendment that would move next year's elections date from August to December. The argument by Cabinet members was that the August date would deny Parliament the requisite time to pass the Appropriations Bill that authorises Government to spend money allocated in the Budget. The Government, Cabinet also argues, will need more time to put in place logistical preparations for the polls.

The Cabinet says life of the current Parliament would have been cut short by four months if elections were to be held in August next year. While the Cabinet decision received support from MPs, the Committee on Implementation of the Constitution, the civil society and the public has condemned it and the outrage is not without reason.

Article 255 outlines a roadmap to any constitutional amendment. It says a proposed amendment to the Constitution shall be enacted and approved in accordance with Articles 256, 257 and approved in accordance with clause (2) by a referendum if it relates to, among other things, the supremacy of the Constitution, the sovereignty of the people, the Bill of Rights and the functions of Parliament. Under Articles 256 and 257, amendment to the Constitution can only be undertaken through two avenues: the parliamentary initiative and the popular approach in which the will of the people is expressed directly.

While the parliamentary option is reserved for dealing with minor matters in our laws, the popular approach has been set aside for determining the alteration of crucial provisions in the Constitution. Thus, the fundamental question to consider now is whether changing the date of the general election is so minor that it can be dispensed with under Article 256, which allows amendment through a parliamentary initiative.

In my opinion, changing the election date is fundamental and cannot be left to Cabinet and Parliament to handle alone. Those contemplating the postponement of the general election from August to December should understand they are already challenging the supremacy of the Constitution as explicated under Article 2 and the sovereignty of the people as stated in Article 1. Given the Constitution was ratified through the popular mandate of the people, challenges against sections of this document can only be resolved through a referendum. Thus, the glorious power of constitution-making is vested in the people of Kenya.

When you read Article 255 alongside Articles 256 and 257, you discover it is difficult to amend this Constitution through Parliament. Aware that the Executive and the Legislature had in the past conspired to deface the Independence Constitution through treacherous amendments, the Committee of Experts (CoE) set out to deliberately make it complicated for Parliament to modify the Constitution without the public's consent.

But even if it were constitutionally possible to change the election date through a parliamentary procedure, the current circumstances would not allow that to happen. Article 256, which envisages a parliamentary initiative in amending the Constitution, anticipates a bicameral legislature â€" the National Assembly and the Senate.

It also presumes County Governments are already in place to participate in this vital exercise. Evidently, however, neither the two chambers of Parliament â€" so crucial to the amendment â€" nor the County Governments have so far been established.

How then can we initiate a constitutional amendment under these conditions?

As currently constituted, the Executive and Legislature are ill equipped to commence any amendments. Given the two critical branches of Government reside in Parliament, they do not have the capacity to check each other's excesses. You cannot ignore the fact that Cabinet ministers posing as representatives of the Executive are also MPs.

The new Constitution was purposefully designed to create a political tradition that respects separation of powers. Since the promulgation of the Constitution a year ago, the political class has spent energy quarrelling over trivial issues instead of implementing the mandatory provisions.

The writer is a senior lecturer at Kenyatta University.