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September 21, 2018

The law aims to give every Kenyan sense of belonging

Guru Gita,
Umesh Shalini
and Shruthin
Srivatsan at the
Samosa festival
in Nairobi on July
23./BRIAN SIMIYU
Guru Gita, Umesh Shalini and Shruthin Srivatsan at the Samosa festival in Nairobi on July 23./BRIAN SIMIYU

In this article I summarise some of the points I made in my keynote lecture at the final meeting of the Samosa Festival season, held at the University of Nairobi on Wednesday. The Samosa Festival, organised for some years by Zahid Rajan and Zarina Patel, brings together a large number of communities and individuals, including distinguished academics—as was the case on Wednesday. The activities this year have been particularly interesting and productive, involving as they have done a number of “marginalised” communities, including the Somali residents of Eastleigh and their social and political leaders. There is no other avenue I know of where the arts and culture of Kenya’s communities are celebrated and discussed by such mixed audiences.

The theme of the final session was Identity. It was dominated by Kenya’s leading scholars of literature and arts. I chose to speak on the 2010 Constitution as a source of identity—national, communal and individual.   In a world of literary scholars, I offered a few reflections on our new constitution—which I immodestly called the identity of the country and hopefully of its people. The concept of a constitution as identity is relatively new. In the old days the constitution was about the structure of the power of the state. Today we realise the complexity of the state and of its people. As I heard the wonderful and scholarly papers that were on offer, I was struck how frequently the authors were concerned to understand the identity of the people, group or community—and even sex—I should not say “even sex”--but “also sex”.

A major difference between the scholarly and the lawyers’ approaches that struck me was that the scholar studies identity as it defines a community or group, while a lawyer’s major interest is often the shaping of identity—of the nation and the people. The constitution then becomes the primary instrument of shaping identity. Some commentators, including our immediately past Chief Justice, call such a constitution a “transformative constitution”.  This is an apt description of our present constitution.     

I also noticed in the scholarly work on offer the concern about the status or acceptance of a community, particularly in the papers about the Somali and other minorities—and there I felt that a constitutional lawyer and a literary scholar have found common ground. Kenya’s constitution is about identity in a number of ways. First and foremost, it is about defining our identity as a people. This is stated upfront—in the preamble--where, in the name of the people, the constitution says that we are “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation”. It commits us to “nurturing and protecting the well-being of individual, the family, communities and the nation”. It goes on to recognise “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. The constitution, it reminds us, is a result of “our sovereign and inalienable right to determine the form of governance of our country”—which indeed they have exercised in the making of the constitution.

Last week, our distinguished politician, , or not so distinguished, Moses Wetang’ula chastised Raila Odinga, also a distinguished, or not so distinguished, a politician. He was complaining that Raila was not sticking to his own tribe (or community as he delicately called it), but instead poking into the affairs of Wetang’ula’s tribe—poking meaning trying to get their votes. He went on to say that Raila should leave the Luhya to Wetang’ula and his new found friends, just he leaves the Kikuyu to Uhuru and the Kalenjin to Ruto—and presumably the Northeast to the Somalis, and the coast to the Arabs. Raila, he told us, can spend as much time as he likes with the Luo. Wetang’ula did not, I noticed, allocate any territory or community to wahindi, leaving the likes of me without an identity. The trouble with Wetang’ula and other politicians is that they do not understand the Kenyan identity established in the constitution; or more likely do not care about it. 

 Transformative the constitution may be, but achieving transformation is no easy task. The constitution makes a valiant effort to bring about the right balance between diversity and nationhood. It is as much about values as it is institutions—in fact institutions must take their cue from the values. Article 4 declares Kenya a multi-party democratic State founded on the national values and principles of government referred to in Article 10. These values bind all state institutions and people when performing state functions. Every Kenyan should know, but few do, what these values are. They include patriotism, national unity, democracy, human dignity, inclusiveness and equality, protection of the marginalised, participation, integrity and accountability. Many detailed provisions protect the languages, cultures, life styles and religions of Kenya’s communities—thus recognising our diversity.

But for our present purposes, the more immediate issue is national unity or nationhood. The key to this is the political system. A key element is equal rights of all citizens—and if the government has not yet realised, that covers Somalis, Ogieks, Nubians, and coastal communities—and also that entitlement to an ID is an essential aspect of equal citizenship. Equally important is the nature of the broader political system. This is spelt out in the rules of the electoral system which are routinely violated by political parties—and which the IEBC either is not willing or not able to stop, especially secrecy, corruption, transparency, violence, intimidation, and improper influence.  The basic principles for nationhood pertain to the structure and principles of political parties—central to every democratic system. The constitution requires that every political party shall have a national character as set out in law, a democratically elected governing body, promote and uphold national unity, abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party, respect the rights of all persons to participate in the political process, including minorities and marginalised groups, and respect human rights including gender equality and equity.

And now we come to the sphere where diversity and nationhood are balanced. The constitution stipulates that a political party shall not be founded on a religious, linguistic, racial ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. How many of our political parties have subscribed to the above principles? To defend an obvious crook because he is “one of us” or make inter-tribal political deals, or hire goons to break up meetings of other political parties—all routinely done by political parties —is no way to build national unity.      

The author is a director of the Katiba Institute and chaired the CKRC and Bomas. 

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