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February 20, 2019

Prof Ghai has gone from defender to tormentor of law


I read with concern the article by Prof Yash Pal Ghai published in the Star newspaper on Thursday, December 21, 2017, titled ‘Raila Odinga: President or Baba wa Taifa’. Ghai begins by offering advice to Raila, urging him against his plans for swearing himself in and proposes instead that he is publicly conferred the title of ‘Baba wa Taifa’. He likens him to bona fide statesmen such as Nelson Mandela and Julius Nyerere, while also invoking names of historical greats such as Mahatma Gandhi and Martin Luther King Jr.

Prof Ghai opens his analysis with an odd statement, part of which reads, “if one might describe Kenya as a ‘nation’”, scorning the very existence of Kenya. He goes on further to disparage President Uhuru Kenyatta and states that, “[Raila’s] stature and achievements are infinitely superior to those of Uhuru”.

Whereas Prof Ghai is entitled to his opinion, this article reveals three false notions that should be a concern and should disabused:

First, in scorning the existence of Kenya as a nation, Ghai betrays his sympathetic attitude towards the dangerous secessionist agenda, which intends to split up the country. Kenya’s existence as one nation is not at the behest of individual sentiment, but rather on the qualifying attributes of statehood of population, territory, sovereignty and government. Its preservation should therefore be the solemn duty of every Kenyan and the occasion of a failed presidential bid should never be a justification to contemplate national collapse.

Strangely however, the translation of ‘Baba wa Taifa’ to English is ‘Father of the Nation’, which then betrays the dangerous Ghai thinking that a nation can only exist if it is Raila-led under the ‘Baba wa Taifa’ banner and not otherwise. This is because he scorns the idea of a Kenyan nation yet his prescriptive solution is the creation of the position of ‘Father of the Nation’. This has undertones of the ‘No Raila No Peace’ slogans, which punctuated episodes of the 2007-08 post-election violence, whose foremost lesson that we must learn from is ‘never again’.

Secondly, Ghai shows his pathological dislike of the President, refusing to acknowledge his obvious contributions to the country, and instead looks at him through the blinding and biased lenses of raw grudge. This not only antagonises the pro-Uhuru support base, the democratic majority that made Uhuru the fourth President, but it also shows the good Prof as a man who, on account of personal vendetta, is unwilling to reconcile himself with the democratic reality of an Uhuru presidency, a fact that was legitimised and in finality by the apex court.

Third, is the disconcerting fact that Prof Ghai seems to be suggesting a return to imperialist individual-centred power structures for Kenya, which is one of the flaws that the 2010 Constitution intended to cure. Kenya’s stability, as was demonstrated in the elections, was because of resilient laws and institutions.

Ghai’s proposal promoting parallel pedestals of power that glorify personalities and transcend laws while existing in opposition to the constitutional Office of President, is a disturbing preference for illegality, which is totally antithetical to the person of Prof Yash Pal Ghai as many Kenyans know him, the most prominent of architects of the 2010 Constitution.

Reading through his article, one gets the sense that Prof Ghai is suffering from the angst of the failed NASA presidential bid, which, however, is a right that cannot be taken away from him. But as an eminent legal scholar whose contributions make the text of our Constitution, the bare minimum expectation for Kenyans is for him to commiserate within the law.

This move away from constitutional thinking reminds me of the biblical story of Saul, the great tormentor of the brethren, who changed to Paul, the great Apostle after his ‘Road to Damascus’ moment. Ghai’s shocking U-turn on the road of constitutionalism is like a reversal of this story. The man who wrote the Constitution now seems to be having a ‘Road from Damascus’ moment, where he has now become the tormentor of the law.

Senior associate consultant, Sovereign Insight Ltd, & advocate of the High Court

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