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November 18, 2018

Whose fault: Constitution or Politicians?

Retired Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by former Attorney General Amos Wako Photo/file
Retired Mwai Kibaki shows off the new constitution with a national seals during the promulgation of the new constitution at Uhuru Park 27-8-10.He is flanked by former Attorney General Amos Wako Photo/file

Politicians have raised the issue of constitutional amendment following two disputed presidential elections, the use of extreme violence, and the threat of the breakup of the country. They are now saying there are basic flaws in the Constitution, in particular the Executive — presidential rather than parliamentary. I say to politicians: Are you sure that the problem is that of the Constitution and not of yourselves?

We tend to regard our crises as connected to elections and the formation of the national government, which stir up ethnic conflicts. Election campaigns are based on patent ethnic appeals (“He is one of us”) not the merits or policies of candidates. Bargaining takes place between parties, not infrequently with changes of partners. Candidates often promote fights and sometimes killings of ethnic supporters of other candidates.

There are other bases of crises, which we tend to disregard: Greed, corruption, poverty, inequalities, and violence (promoted by the State, politicians or citizens). Even candidates with good intentions tend to slide into the self-serving habits of politicians. During the current political crisis, which pre-dates the elections, politicians have tended to blame the Constitution, to take attention away from their greed and corruption, and their incitement to violence. Blaming the executive presidential system, they have found a panacea — the parliamentary system. They forget that it was politicians who kicked out, unanimously, the parliamentary system adopted by Bomas and endorsed by the Committee of Experts

However, to make the situation worse, we are too content to blame the presidential system, not the President, regardless of his many failings, favours to his wealthy business supporters, and rewards for his buddies, who lost the election. The economic, social and political problems that we are facing, people seem to think, are clearly the fault of the Constitution, not that of the hard working and well meaning presidents. You might think that the politicians are right, but remember there are several states with executive presidencies that are peaceful and prosperous.

Historically, Kenya’s political leaders have shown preference for the presidency. The 1963 Independence Constitution, the most democratic Constitution Kenya has had, accommodating ethnic diversity, powers to the regions (similar to but with more authority, covering larger areas than the counties now), police powers shared by the centre and regions, a strong Senate, representing regions, to protect the entire system, and a strong entrenchment of all this — requiring 90 per cent of the vote in both Houses. The champion of the unitary system was Jomo Kenyatta, and that of regionalism was Daniel Moi, then bitter enemies.

Immediately after the British flag was lowered, Kenyatta began dismantling the Constitution, centralizing State power (in part by bribing every Senator to dissolve the Senate, and as an additional incentive, making them automatically members of the Lower House). This done, he focussed on transforming the parliamentary system into presidential, which he achieved within a year, with, guess, Jomo as the President. After that most protections of the Constitution were stripped away — including the infusion of his Cabinet and the senior offices in government and parastatals with GEMA people — not the beginning of ethnicity, but the flourishing of it, reinforced by the taking of secret oaths, as recounted by Bishop John Gatu. Galia Sabar has written in Church, State and Society in Kenya how oathing ceremonies were imposed on the Kikuyu by Jomo to foster tribal unity and ensure Kenyatta and his ruling clique kept their grip on power). Huge chunks of the State’s resources and of the private sector were snatched by him and his colleagues, usually without compensation.

Thus, the leader of the GEMA tribes achieved great eminence, enormous wealth, and considerable learning — which are apparent to this day. Except that his Vice President was Moi, a Kalenjin (the champion of parliamentaryism and regionalism), after his predecessor (Joseph Murumbi) had refused to participate in Kenyatta’s corruption. Moi, the great champion of minorities, became subservient to Kikuyu interests — until he ascended to the presidency. Then, a few Kalenjins, riding on the back of the State, amassed huge fortunes, to say nothing of Moi, as adept as Kenyatta in plundering the State.

The Kikuyu assumption that he could be eased out in a short time was a serious underestimation of this crafty politician. Moi not only maintained the authoritarian system but also made Kenya a one-party state and punished severely those opposing his rule (such as Raila Odinga), again following the footsteps of Kenyatta, who had little hesitation in getting rid of his opponents.

So soon after Independence, incipient democracy was quashed and the parliamentary system eliminated in the name of building a nation under the rule of one person riding on his tribe. It did not take long for Kenyatta, allegedly in the cause of nation building, to establish the dominance of his tribe and family. Thus, at an early stage, ethnicity was reinforced as a key factor in politics as was the plunder of the State.

 

A NEW CONSTITUTIONAL ORDER?

Kenya’s authoritarian system had ridden on the Cold War, and was threatened by its end — due to changing pressure from the West. By that time, a local movement for a democratic and just system was taking root, supported in due course by the Church and Opposition parties. The origins of the 2010 Constitution is the product of that struggle as former Chief Justice Willy Mutunga has so well illustrated. However, the journey of the draft was not easy, with politicians gradually taking over from civil society with their politics of ethnicity and personal greed.

A great deal of the original (Bomas) version was rescued (sadly as a result of the massacres of 2007-08, believed to have been engineered by politicians) by the pressure of Kofi Annan and other eminent Africans.

If all previous constitutions had been the result of the initiative and whims of politicians, the 2010 Constitution was the result of the views of Kenyans, obtained from throughout the country by the CKRC and analysed carefully, before preparing a draft which went after further public debate, to the Constituent Assembly at Bomas of 629 members representing all sectors of society. These included religions, civil society, regions, professions, women, the disabled, and parliamentarians. There were wide-discussions based on the CKRC draft — fully reflecting public views. However, the worst moments of the constitution-making process was when parliamentarians got hold of the draft and forced the CoE to make some critical amendments, particularly the re-introduction of the executive presidency.

Eventually, the draft was presented to the national referendum and, despite the urging of churches to reject it, nearly 70 per cent of the voters supported the draft. It is obvious from the foundation of this Constitution (“sovereignty of the people”) that its primary goal is democracy, national unity, sharing of power, people’s participation in affairs of the State, human rights and dignity, social justice and equity, protection of the marginalised, good governance (transparent and accountability), removal of ethnicity from politics — above all, integrity of State officials.

It is clear from these goals (for whose achievement the entire Constitution is designed) that most politicians were not pleased. The Constitution, anticipating attacks by politicians, has provided safeguards, the most obvious of which in an independent, competent and honest Judiciary, with wide jurisdiction vested in it in respect of violations of the Constitution — coupled with easy access to it. Other safeguards include a number of independent commissions and the participation of the people in public affairs and decisions.

The design of the electoral system is also geared to the above values. Unfortunately, while there has been much hullabaloo about elections, endless disputes, hundreds of judicial references, the essential principles have been paid no attention (not even by the IEBC). Article 91 defines both the nature and purposes of political parties and the conduct of elections. Of the former, no party can be registered or take part in elections without a “national character” or fail to promote and uphold national unity. It must promote constitutional objects and principles and observe the rule of law. A party cannot be legal if it is founded on a religious, linguistic, racial, ethnic gender or regional basis, or seeks to engage in advocacy of hatred on any such basis. It is illegal for a party to engage in or encourage violence by intimidation of its members or opponents, bribery or other forms of corruption. All of these acts, which would disqualify a party are numerous, including even killings, indulged in with total immunity — especially if the party belongs to the government. The police, in disregard of the Constitution, are at the service of the President and his colleagues — and responsible for killing hundreds of innocent people.

 

WHY DO I SAY THAT THE CONSTITUTION IS NOT TO BLAME?

I have outlined above the process that led to the adoption of the Constitution. Kenyans, for the most part, like the Constitution, and more of them are beginning to make use of the procedures available to hold governments accountable, and participate in law making.

Kenyan politicians have a narrow view of politics, confined largely to making a fortune. Most enter elections without a clear policy for the welfare of the people, and may have changed their party allegiances several times. They are prepared to bribe to get votes. The worst stratagem is to promote tribal loyalty – almost everywhere the winner comes from the largest ethnic group in the constituency. Aspirants to the presidency or governorship almost always count on the voting on an ethnic basis — and therefore woo the leaders of the dominant tribe in the constituency. Large sums of money exchange hands. Once elected, they spend endless hours working out how they can increase their take-home. On this point, they all work together. This solidarity is depressing. They should debate issues of public interest and question the conduct of the government.

To put the Constitution in their hands would be taking big risks. It is encouraging that parliamentarians are now addressing the question of ethnicity — and with that, they are considering the re-structuring of the State. But it is already clear they are less concerned about the stability and effectiveness of the government than placating leaders of large ethnic communities. The President (who can represent only one tribe) is to be replaced, preferably, by leaders of the big five or six. On the surface, this may seem as if this arrangement would promote ethnic harmony. But this approach is completely antagonistic to the Constitution, which bans ethnicity in public life — as I have shown above. The national unity that the Constitution prescribes is to be achieved by transcending ethnicity, not glorifying it.

Ethnicity has its own place, in the private domain, not the public. The Preamble says: “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation”. This enjoins us to respect other cultures, learn from and enjoy them, but does not make them part of the State. It is a matter of great regret that our politicians, seven-plus years after the enactment of the Constitution, a document not only dear to Kenyans but also the subject of discussions abroad, have not picked up this basic element.

 

WAY FORWARD

I am not suggesting that no constitutional amendment should be made. Far from it, I have always believed that no constitution is sacrosanct and needs to be examined when it is unable to cope with state and society. I do not believe we have reached that stage, though we may be inching towards it.

I do believe our presidency is a miserable failure, but this is because our presidents have disregarded many aspects of the Constitution and asserted their authority beyond that sanctioned by it, rather than inherent fault. But politicians should realise they are the most unpopular group in the country, and more and more people have contempt for them. Many feel they cannot be trusted to amend the Constitution without slipping in new perks for themselves —and generally promoting new powers, greater remuneration and less accountability. They have shown little interest in the Constitution as an instrument of governance.

So, let us approach the question and procedure of amendment in the spirit of the Constitution itself — a national enterprise in which civil society and other groups have as much say as parliamentarians. Let us use the process to enhance national unity, while showing respect for different cultures and religions.

 

The writer is a director, Katiba Institute, and a constitutional lawyer

 

 

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