DISEMBE: Wanjiku overrated on constitutional politics

Let Wanjiku decide on this initiative, even if it wasn’t her initiative. Give Wanjiku her voice in the referendum.

In Summary

•Wanjiku’s name has always been exalted as wanting this change or that minimum reform but the truth is that at no time has Wanjiku ever sat under the mugumo tree to propose changes to any constitution.

•Throughout Kenya’s constitution making journey, from Lyttelton (1954), Lenox-Boyd (1958); the chatter at Lancaster (1960-63) all the way to 2010, it takes charlatanry of the highest order to argue that Wanjiku has been a maker of any of these ‘Kenyan constitutions’.

A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020
BBI REPORT: A delegate reads the BBI report during its launch at Bomas of Kenya on October 26, 2020
Image: ANDREW KASUKU

President Moi, the giraffe that saw from afar, is said to have remarked at the height of the clamour for constitutional reforms in the 1990s that constitution-making was too complex for Wanjiku.

Sadly, in bludgeoning BBI, the High Court used Wanjiku as the murder weapon. The court declared that one of gravest sins of the BBI process was that it never involved Wanjiku and therefore, must fall.

This mischief of bringing up Wanjiku in elite power games has its origins in the late 2000 when agitation for constitutional reforms yielded the first major initiative to overhaul the constitution that had served the country for nearly forty years since independence.

When in November 2000 the Constitution of Kenya Review Commission was appointed, with Prof Yash Pal Ghai as the inaugural Chairperson, a splinter group composed mainly of civil society actors came up with ‘The People’s Commission’, what would later be known as the “Ufungamano Initiative”, accusing the government-gazetted CKRC of not being ‘inclusive, comprehensive and people-driven’.

This “People’s Commission” was chaired by Dr. Oki Ooko Ombaka, now deceased, with Abida Ali Aroni, now a judge of the high court, as Vice Chair. This was the first case of a group of Kenyan elites coming together to claim that they represented ‘Wanjiku’.

As was expected, these two groups of elites quickly closed ranks and formed one commission. Prof Ghai would maintain being the chair, but now Dr. Oki Ombaka, the former leader of ‘Wanjiku’, became the Vice Chair. To accommodate elite women in the room, Abida Ali Aroni became second vice chair. With this elite consensus, these elites revived Kenya’s constitutional journey.

Did Wanjiku desire that the “People’s Commission” collapse itself and join the government-initiated constitutional review? Was the “People’s Commission” itself even a Wanjiku Commission? How could it have been when it was composed entirely of the crème of Kenya’s donor-subsidized civil society elites?

How was Dr. Oki Ooko Ombaka, Abida Ali-Aroni, Abubakar Zein Abubakar, Said Athman, Dr. Charles M. Bagwasi, Nancy Baraza, Al-haj Ali Baricha, Dr. Wanjiku Kabira, Amina Sheikh Kassim, Juma Kiplenge, Isaac Lenaola, Ibrahim Lethome, Geoffrey Gachara Muchiri, Salome Muigai, Adelina Mwau, Pheroze Nowrojee, Godfrey Masanya Okeri, Riunga Raiji, Joyce Umbima and Erastus Wamugo who appointed themselves the people’s commissioners any different from the CKRC commissioners Prof. Yash Pal Ghai, Ms. Kavetsa Adagala, Mrs. Phoebe M. Asiyo, Pastor Zablon Ayonga, Mr. Ahmed I. Hassan , Mr. Mutakha Kangu, Bishop Bernard N. Kariuki, Dr. Githu Muigai, Prof. H. W. O. Okoth-Ogendo, Mr. Domiziano Ratanya, Prof. Ahmed Salim, Dr. Mohamed Swazuri, Mr. Keriako Tobiko , Mr. Musili Wambua and Mrs. Alice Yano appointed by President Moi?

When you look at the two groups, what differences can you pick out? Zilch. These were all politico-legal elites. They represented the high society of Kenya, from academia to media to the church. The Ombaka group could not claim to represent Wanjiku any better than the Ghai group. Not surprisingly, Dr. Ombaka and Prof. Ghai were top constitutional law experts. There was nothing inherently different in their worldviews. They both looked at Kenya from their high horses.

It was no wonder the two groups quickly merged with less fanfare to jumpstart the review process. The only difference was in their formation. One group had been appointed by the government of the day, by President Moi, which was itself ‘duly elected’ to rule, and the other had appointed itself and given itself the dubious mandate to represent Wanjiku!

This historical exegesis of the political elevation of Wanjiku as a constition-maker must now be called out as a big historical lie. Throughout Kenya’s constitution making journey, Wanjiku has never been the primary initiator or even agitator for constitutional reforms.

Wanjiku’s name has always been exalted as wanting this change or that minimum reform but the truth is that at no time has Wanjiku ever sat under the mugumo tree to propose changes to any constitution.

Throughout Kenya’s constitution making journey, from Lyttelton (1954), Lenox-Boyd (1958); the chatter at Lancaster (1960-63) all the way to 2010, it takes charlatanry of the highest order to argue that Wanjiku has been a maker of any of these ‘Kenyan constitutions’.

The fact of the matter is that Wanjiku has been too busy with basic sustenance maneuvers to start any form of agitation for constitution changes sua sponta.

The BBI constitutional initiative is perhaps the most honest in the reasons it is advancing for constitutional change. It is a review process started by two Kenyans of elite pedigree to solve elite political conflicts which, left to fester, spills over to Wanjiku in the form of hacked limbs, charred bodies, cold blood killings, rapes and torture, forceful evictions of communities, police brutality, destruction and pillage of properties, a stunted economy and mass social strife. The list is endless.

BBI did not start, and has never passed itself as a ‘Wanjiku initiative’. But the promoters have sought Wanjiku’s consensus at every stage of the way. It is just right to give Wanjiku their final say, which is at the ballot.

Let Wanjiku decide on this initiative, even if it wasn’t her initiative. Give Wanjiku her voice in the referendum. Good luck, Court of Appeal!