CKRC was well aware of the different approaches to the balancing of ethnicity and unity, particularly the consociational approach which relies on power sharing between different communities (which has won strong endorsement from Nyong’o). I myself had advised a number of countries which were multi-ethnic on their constitutions—and had generally discouraged the consociational approach, for the inherent tension it creates, and the manner in which it disadvantages smaller communities. It was also hard to imagine how the representatives of 42 or more ethnic groups could be accommodated within the government. Consociation has a tendency to solidify ethnic differences and slow down national integration. I believed that already Kenya’s politicians had manipulated ethnicity to their political ends, with great harm to the country. Fortunately ethnicity was still fluid, and could be harnessed to Kenyan nationalism without losing valuable cultural dimensions—and retaining fairness to all communities. Politicians have a tendency to exaggerate differences but the fact is that most understand a common language; 82% belong to same religion (and we have had no religious conflict); our aspirations are broadly the same; common colonial experience shaped our educational system, ideas and moral standards, leading to broadly similar values; we are able to work amicably in professional, business and social organisations (overcoming the colonial divide and rule legacy)—and inter-ethnic marriages and friendships are on the increase.
The constitution aimed to overturn the perverse politics of our presidents and other political leaders. It aimed to do this in a number of ways, from the cultivation of new national values, aspirations and identity and institutions which would support their achievement and provide an acceptable constitutional framework for constructive ethnic and personal relationships. It was essential to establish trust in state institutions, the lack of which in itself had led many to seek refuge in their ethnic community. The state had to be humanised, recognising the dignity of both individuals and communities.
Among the national values are patriotism, national unity, human rights and dignity, inclusiveness, non-discrimination, protection of the marginalised, social justice, and good governance with integrity and transparency. The constitution recognises and protects the culture and languages of all communities, but maintains Swahili and English as official languages, and, while guaranteeing the freedom of religion to all faiths, it gives no priority to any faith, indeed prohibits any state religion. It recognises rights both of individuals and communities. In this way the constitution secures a balance between the general and the specific. Directly or indirectly, the constitution provides guidance the balancing of the interests of individuals, communities and the state. All Kenyans enjoy equal rights of citizenship. At the same time the constitution allows, indeed requires, special treatment for minorities and marginalised communities—at least until they have caught up with the more privileged groups. It is solicitous of the concerns of groups who want to maintain their lifestyles, such as pastoral communities and forest dwellers.
State and its institutions
National values are also reflected in the functions and structures of the state. The current debate in Kenya is largely about this—since the state is truly a dominant factor, even force, in the fortunes of most Kenyans. The debate is largely about the access to the state and its resources, and the favoured treatment of some and the marginalisation of, its various communities. Indeed Nyong’o reaches the surprising conclusion: Tribe is not the problem: It is the system of governance. In this statement he typifies the concern of most politicians: how to secure wealth and other opportunities for themselves. In fact the problem is the exact opposite: how by subverting state institutions, politicians have made tribe the problem.
Let me, by a few examples, show how the constitution aims to diminish the political importance of tribe and promote national values of integration and unity. I begin with the electoral system—the topic of much contestation now. I should begin with the Constitution’s description of Parliament: it “manifests the diversity of the nation”. But elections are based on first past the post system, a particularly inappropriate system in multi-ethnic states. So why do we have it? We have it because the politicians wanted it, contrary to recommendations of CKRC. Fortunately, rules about the organisation and membership of political parties escaped the scrutiny of politicians. CKRC wanted to prohibit parties grounded on ethnic membership. Parties must have a “national character”, must uphold national unity, cannot be based on religion, language, race, sex or region, and must not advocate hatred on any of these grounds—and must show that they enjoy support in substantial part of the country. As to the composition of parliament, both houses must reflect the diversity of Kenyans, including regional, ethnic and other minorities and marginalised communities.
The same principles apply to the political and administrative composition of the executive, including that of the Cabinet, as also so to state services (judiciary, administration, police, military) and independent commissions. An independent commission (established by ordinary legislation) has the responsibility to ensure that these principles are observed.
Power sharing of a more direct kind is provided through devolution. A number of functions are vested in counties which are also guaranteed financial resources sufficient to discharge their functions. Among the objectives of devolution is to recognise “diversity”, “the right of communities to manage their own affairs and further their development”, “protect and promote the interests and rights of minorities and marginalised communities” and “ensure equitable sharing of national and local resources throughout Kenya. There are other objectives also, including promoting democratic and accountable exercise of power and “enhance checks and balances and the separation of powers”. Some designers of devolution did not see it necessarily as a device to empower ethnic groups as such—indeed with 47 counties, it was obvious that the larger groups would be split among several counties, with substantial minorities—thus taking the emphasis away from ethnicity. This is another example of fine balancing of diversity and unity.
So where do we stand?
It is clear that the Constitution was driven by a new model of governance which would be fair to all communities, down play the political role of ethnicity, promote co-operation among people from diverse backgrounds, and ensure fairness and social justice across the country. It is hard to decide how far it has succeeded—but the general view is that while some objectives show promise of achievement, the core values have been deliberately disregarded. But the Kenyan public, almost unanimously, agree that the failures are due to the hijacking of the constitution by politicians.
The author is a director of Katiba Institute