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February 20, 2019

A Constitution For All, Not Politicians

This week marks the fourth anniversary of the promulgation of the new constitution. The significance of a country’s constitutional history cannot be overstated, for it is as a reminder of where the nation has come from and the lessons it has learnt. Kenyans could do worse than take some time to reflect on the process of constitution-making and the document produced.

Much of the last quarter century of our collective history was spent trying to undo the original sin committed at independence. In that time, we have been trying to reverse the dismantling of the majimbo constitution, concentration of power in the person of the president as well as the dilution of the bill of rights. The terms we use may be different but the arguments are still largely the same ones our parents and grandparents had. The concerns over marginalisation and exclusion remain.

In a paper titled Amending the Constitution - Learning from History that he presented at an International Commission of Jurists conference in 1992, our current Attorney General, Githu Muigai, noted what had happened in the first decade following independence: "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimisation.

When the independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Effectively, as the Truth Justice and Reconciliation Commission noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the “Second Liberation” that started in 1990 and gave birth to the current constitution. And while it was very much a struggle to tame the “authoritarian administrative structure,” it also became conflated with notions of good governance, accountability and transparency, which made Kenya part of a global trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the struggle among politicians for governance arrangements that would suit them. There appears to be a dangerous sentiment that the underlying causes were either resolved by the promulgation of the constitution or that they can be safely swept under the carpet of “accept and move on”. In an article published at the weekend, Dr Nzamba Kitonga, the former chairman of the Committee of Experts that drafted the 2010 constitution, essentially admits that the process was hijacked by the political elite and details how, following the mind games played at Naivasha, the committee was “advised not to tamper with the pure presidential system agreement and several other new clauses”.

So much for a “people-driven constitution”. But Kitonga goes ahead to legitimate this usurpation, privileging the arrangements for electoral losers and reducing the role of “Wanjiku” in government to cheering on the sidelines. “In the rural areas wananchi are also grumbling,” he asserts. “They say they no longer “feel” the government. They long for the days when an MP or minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language – including dancing, singing, cheering and generally inspiring the crowd”.

And so it is today that our current constitutional debates seem to be more about accommodating politicians and their greed and relegating the role of the people to performing traditional gigs for the elites entertainment. Governance has taken a back seat.

There has been little outrage so far this week when the Nairobi Deputy Governor revealed that when the defunct Nairobi Metropolitan ministry spent nearly Sh437 million installing a camera and traffic lights system meant to tackle the capital’s notorious traffic jams, it neglected to include the synchronisation software that would actually make the system work.

The fact that the Pakistani city of Peshawar was reportedly going to spend the equivalent of less than Sh20 million installing 260 cameras and three control rooms to monitor them while we spent more than 20 times that amount installing 42 (or that we were initially meant to install 51 at the same cost) does not seem to bother most people.

Sadly, we have divorced our governance arrangements from the role they are meant to play in preventing such irregularities. We would much rather go to the streets to protest theft of political power (which is really only the opportunity to “eat”) than to protest the impoverishment and marginalisation that this has brought. I fear we are slipping back into the mould where we would much rather starve with one of our own in power, than set up systems that ensure all have square meals.

It has been said time and again that constitutions live, not on paper, but in the hearts of the people. If they are to be any good, they have got to work in the interests of the many, not of the few.

Our political elites have for too long enjoyed too many seats at the constitutional table and their voices and ambitions have for too long been allowed to crowd out the call from the masses for accountable governance that responds to their needs, that defends them from the indignities of deprivation and poverty, protects them from wanton violence, treats them as human beings everywhere deserve to be treated, ensures they have the opportunity to actualise their dreams and that offers a better future for their children.

Thus as we mark the fourth anniversary of the promulgation of our constitution, and as we debate the possibilities and opportunities of amending it, it is my fervent hope that it is the welfare of wananchi, not that of the current crop of wenyenchi, that will be the uppermost consideration animating our conversations.

Patrick Gathara is a strategic communications consultant, writer, and award-winning political cartoonist.


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