KATIBA CORNER

Constitutions and what politicians do to them

Politics ceased to be about policies but instruments of violence

In Summary

• The deep divisions among Kenyans (divisions created to a considerable extent by colonial policy) might have led to Kenya’s disintegration, but for pressure from Britain.

• The discussion about a “referendum” also lays bare the real concerns. Under our law and Constitution, the only situation that requires, or even contemplates, a referendum is constitutional reform

Retired President 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.
Retired President 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.
Image: FILE

Kenya has gone through multiple systems of governance, starting with the British and their occupation of our country.

There is little point in discussing the British period, though in some important ways it seems that our rules have been inspired by the ethos of the colonial British.

Britain did try, at the demise of its rule, to establish in Kenya a Westminster parliamentary system but at the same time incorporating special provisions for the protection of minorities.

However, resistant to the leaders of dominant tribes, particularly Jomo Kenyatta, they had to accept the rights of minorities (mostly indigenous), even though the proceedings took an enormously long time.

The major difference in the negotiations for the 1963 Constitution was over whether Kenya should be a unitary state or divided into regions (majimbo). It became clear to those opposing majimbo that this was the price for independence.

 

The deep divisions among Kenyans (divisions created to a considerable extent by colonial policy) might have led to Kenya’s disintegration, but for pressure from Britain.

Jomo realised that it was worth conceding to the British terms: so long as he became prime minister (with Britain out of the way) when he could dispense with majimbo. This he did within a year, with other major changes, making the state highly centralized—and under his control, not as prime minister but as executive president.

Jomo, it has to be said with sadness, set an extraordinarily bad example for a head of state, with no respect for democracy or integrity. We still suffer from these ailments, which his son has promised to remove — with the BBI?

1978 – 2002  AND MOI

Daniel Moi, the successor to Jomo (on the understanding that the Kikuyu politicians would be dominant), set no better example, adopting largely his master’s style of administration and the lack of integrity.

Jomo and Moi had no respect for the rule of law, a central virtue of the Constitution giving us independence. Politics ceased to be about policies but instruments of violence (of even honest and nationalist Kikuyus). The popular Tom Mboya, a minister regarded by many as the rightful successor to Jomo, was killed, it was widely believed, by government agents.

2002-05: KIBAKI AND BOMAS DRAFT CONSTITUTION

Kibaki provided a very good example of the self-centred Kenyan politicians. A senior minister once (in Kenyatta’s time), he had fallen out with President Moi by the time the process for adopting a new democratic constitution known as Bomas began (under pressure from Kenyan civil society and foreign states in the wake of the end of the Cold War).

At that time, Kibaki probably thought his chance of getting back into power was through the parliamentary system. He and his party (assisted by Kiraitu Murungi) were among the first to make submissions to the Constitution of Kenya Review Commission.

He urged it to adopt the parliamentary system—even though he had been the beneficiary of presidential system politics under Jomo and Moi. He made a spirited denunciation of what he called “the imperial presidency”. He appeared to stick to this position during much of the Bomas constitutional conference process.

 

Meanwhile, the members of Bomas were debating the CKRC proposals — made after intensive consultations with Kenyans of all kinds, throughout the country.

The membership of Bomas (officially 629) comprised all the parliamentarians (222), representation of all the districts (chosen by the district boards), and civil society and professionals (with fair representation of women and people with disability).

A broad consensus was emerging in favour of a parliamentary system, with a President having largely formal role except for minimal powers to counterbalance possible abuses by the government, and a Prime Minister, with the support of Parliament, as head of government.

At this stage, Kibaki and his team started arguing for the executive presidential system. Having defeated Moi’s chosen successor (Uhuru) in 2002, he had begun to realise the “virtues” of the presidential system that gave him as President so much power.

Kibaki and his team started more or less to boycott Bomas. And rumours suggested that Kibaki and his team were engineering a challenge to the entire Bomas draft – and as chair, I was warned, confidentially, by a leading lawyer, that this was taking the form of a court case, which was likely to go against the Bomas process.

I increased the pace of the Bomas discussions, even at the cost of foregoing refinement of the provisions of the draft constitution on devolution.

The remaining Bomas members worked extremely hard, for long hours, with good discussion, to conclude the agenda and in the presence of a large audience (in addition to the Constitutional Conference members themselves), the draft constitution was adopted in accordance with the prescribed rules, by an overwhelming majority.

THE COURT CASE

Sure enough, a few days later, the High Court decided there was a fundamental flaw with the whole Bomas process. There were major problems with the litigation. It was started three and a half years after the start of the process when the draft constitution was nearly done.

The identity of the presiding judge caused a good deal of comment. At the time, he was in the running for one of two prominent positions as head of a new post of a new anti-corruption institution, carrying the highest salary in the land, or promotion within the Judiciary.

After the case, he was offered, and accepted, the former, a position essentially in the gift of Murungi who held a senior ministerial post.

That judge’s lengthy judgment designed to demonstrate the faults in the procedure of Bomas was full of references to cases and arguments that had not been raised by the plaintiff.

Bomas was apparently killed. And this enabled the government to take over the whole process, amend the document to take away the parliamentary system – returning to a largely presidential system.

But the government’s butchered version of the constitution was rejected by the people – as much motivated by disappointed with the regime as by the detail of the constitution. But no-one in the government mourned this referendum result: it left them with the old, discredited Constitution, complete with its imperial presidency.

Returning to the old authoritarian system led to discrimination, ethnicity, deceits and conflicts—and such massive killings of citizens and destruction of housing and other properties – in the 2007-8 post-election violence - that in the end Kofi Annan and other eminent African leaders recommended that the Bomas draft be put back on the table —which was eventually done, but with some major amendments, including the replacement of the parliamentary with the presidency and major changes in devolution.

The Bomas draft formed the basis for the work of the Committee of Experts. And the parliamentary system of government – because of its more inclusive and ultimately more democratic nature – became again the central proposal, so far as the system of government was concerned.

But again, a document that was essentially based on the wishes of the people was taken over by politicians. A parliamentary committee had the power to make recommendations. But the Committee of Experts felt it had to accept what the politicians “recommended” on the questions that touched on political power.

Most importantly these were those about the system of government – and those parliamentarians again abandoned the parliamentary system, and “recommended” our current American style presidential system. Calculations about who would benefit from which system of government again figured prominently in the reasoning that led to this result.

But why rehash this old history? Because history, again, seems to be repeating itself.

2019: BUILDING BRIDGES INITIATIVE

The government (or rather Uhuru and Raila Odinga using yours and my taxes) having placed a few individuals in place, feel we are about to solve our problems.

At first, it looked as though their mandate from Uhuru and Raila was broader than those who held political power. What seemed to be needed was the full fulfillment of the Constitution (which Uhuru and Raila professed to revere). And the BBI report is long and discusses much that touches on other issues.

About nine of their proposals need changes to the Constitution, nearly 30 would require changes to ordinary law. Many are just “let’s do what the law already requires”. The real concerns of our political leaders seem to be revealed by the decision to appoint a group of constitutional experts to assist the task force to “fine-tune” the BBI report.

The discussion about a “referendum” also lays bare the real concerns. Under our law and Constitution, the only situation that requires, or even contemplates, a referendum is constitutional reform.

And the constitutional reform that is being focussed on is – and you have noticed it – is on the system of government. In other words, on who gets to hold political power – that political power that it is the sovereign right of the people of Kenya to allocate.

A reasonably competent team, in the form of the task force, listed a large list of constitutional and other violations—but every Kenyan knows these violations and that are mostly perpetrated by the state (including politicians).

Instead of taking any action, the government has set up another team of 30 to educate Kenyans (in the New Year) on the problems facing Kenya and how they could be solved.

The outcome of all this is continued feuding among political groups of little significance interest to most Kenyans.

The major issue concerns leaders of major tribes as to political, legal arrangements after the end of the present terms of office. And the current solution for our problems is to ensure a prominent, prestigious, post for each of the five (or six) major tribes - or, more accurately, for their leaders.

What has been canvassed with vigour is the retention of the President, as at present, outside Parliament, one Prime Minister with two deputy prime ministers with, perhaps responsibilities of their own.

Raila, however, seems more inclined to the traditional Prime Minister with other ministers as in charge of the government. And the anticipated “fine-tuning” of the BBI report may well deliver such a solution

2020: REAL PROBLEMS FACING KENYA  

In brief, we all know that there are repeated and gross violations of the Constitution. The strength of the current Constitution is clear from Article 10, especially 10(b), which prescribes national values and principles of governance.

Some key provisions are national unity, democracy (including the participation of the people, human dignity, equity, social justice, human rights (which include the abolition of poverty and protection of the marginalised.  

There is massive violation by political parties and the IEBC of electoral laws as well as provisions on the nature of political parties under the Constitution.

Article 91 sets out the rules governing political parties (such as having a national character, promote and uphold national unity; abide by democratic principled.

A party cannot be founded on a religious, linguistic, racial, ethnic, gender or regional basis; engage and engage in bribery or other forms of corruption, or use public resources to promote its interests or its candidates in elections.

There are massive violations of the Constitution by state agencies, from the office of the President to the lowest public officer. This is now widely acknowledged by President Uhuru and many other state officials.

But, yet again, our politicians have reduced our problems to “their” problems – those who call themselves politicians.

The concerns are with who gets into power, not with how that power is used for the people of Kenya, in accordance with the Constitution in which Kenyans have placed so much faith, and into which they put so much effort.