Madness to tinker with Constitution as citizens vote is march to folly

The peril of Kenya lies not in our laws or institutions, but in the decline of our character as a community.

Without a powerful sense of community, even the best laws and institutions will be empty. Our present crisis isn’t new, yet the suggested constitutional reforms are usually irrelevant to the problem that provoked them. A lot more should be done to fix our politics instead of a referendum.

Retired UK Supreme Court judge Lord Jonathan Sumption in the 2019 BBC’s Reith Lectures In Praise of Politics, criticised the law’s expanding the empire into all our lives. He observed the law’s corroding influence on democracy, arguing that Politics and not law holds the solutions to the crisis in our society. And warned, “Every human problem or moral dilemma can’t call for legal solutions.”

Justice Sumption makes the case for strengthening the political process through representation, which is the critical role of Parliament. It is difficult for all citizens to vote and decide over a matter. The masses often have insufficient data and information to reach an informed decision when pushed to decide through a referendum.

It is a cruel irony to achieve the inclusivity we seek through a referendum. We know too well from Kenyan experience that a referendum by its nature is divisive. Every referendum we have held left us divided: At first, it was Banana vs Orange groups. Next, it split us between the Yes and No camps.

We observed a referendum sorely dividing the United Kingdom, between 'Brexiters' and 'Remainers'. Referendums produce a result in which a majority, by any margin of votes, feels entitled to speak for the whole nation and the minority don’t count. There's a tacit assumption that those who are on the opposite side are enemies, and this can lead to violence in a referendum.

It is difficult to walk the sensible middle of the road or achieve needed compromise over complex social challenges because they simplify complex issues into sound bites. This hinders a thorough and factual debate. Besides, our leaders espouse referendums as a gauge of public approvals, while in reality; it is their tool to cause the public to parrot their untested ideas.

Justice Sumption insists that political decision-making should stay in the hands of politicians because they can accommodate the widest array of opinions and act in the national interest. For citizens would possess what Sir David Hume, a prominent figure of the 18th century’s Scottish Enlightenment, termed an incurable narrowness of soul which makes people prefer the immediate to the remote and to promote parochial interests over the national ones. Sumption, therefore, supports taking this process away from the electors who have no reason to consider anything but their immediate and narrow opinions. 

James Madison, in The Federalist Papers, made the strongest justification for representative politics. Which, he argued, is to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

It’s a tragedy that our politicians are strangers to this principle of representation. They, at best, only listen to the concerns of the constituents but do not promote among them a broader view of the public interest.

Regrettably, our legislature operates as a creation of the Executive, and or their political party heads, whose say what matters most. Sir Edmund Burke, an Anglo-Irish politician, political theorist, and philosopher reminds us, “Parliament was not a congress of ambassadors but its members were there to represent the national interest rather than than the opinions of the constituents.” 

These motions for change will leave us divided bitterly unless they undergo a process of refinement and enlargement, through the broad workings of the legislative process. From the contests and accommodation of interests in legislative committees to the representatives’ open declarations to their constituents and from private persuasions at public hearings to the deliberative proceedings in Parliament.

I opine that this madness to tinker with the code may become our 'march to folly'. In the March to Folly, Barbara Tuchman gives a stark warning about the decisions leaders make, unwilling to listen to facts but end up harming the ordinary people. In some of her conclusions, she asserts that folly is sometimes caused by people’s "wooden-headedness"or ignoring the earlier history. Just folly.

This is not a situation where leaders err in judgement from not knowing, but for a decision to be determined as a folly, Tuchman sets out common three criteria that must be fulfilled.

First, they warned those who were responsible before the potential for a disaster of what they were getting themselves into. Second, there were workable alternatives to the course they took.

Third, it was groups, not individuals, who perpetrated the foolishness that suffered. She supported her assertions with four major acts of folly in human history. These are the Trojans’ decision to move the Greek horse within the walls of their city; the refusal of six Renaissance Popes to arrest the growing corruption of their church and to recognise the increasing restiveness that would lead to the Protestant secession; the British misrule under King George III that eventually cost England her American colonies; and America’s mishandling of the conflict in Vietnam.

The facade will stand, but there will be nothing behind it. The rhetoric will be loud, but it will be meaningless.  And the fault will be ours.  

Canon Francis Omondi, A priest of The Anglican Church Of Kenya’s, All Saints Cathedral Diocese, Nairobi.