Let's pay attention to largely ignored Bomas Constitution

A particular obsession of the Kenyan politician is to grab all the powers in the state. The British gave Kenya independence with a constitutional order in which state power was shared by several communities. So we had a parliamentary system and not presidential. It did not last long—precisely one year—and, ever since, one got the impression of Kenya belonging to the Kenyatta family (at least in some people’s eyes).

When a new constitutional order was introduced to mark a clear departure from the past, somehow advocates of the old order managed to drag the country back to an imperial presidency  – first by pushing a change in the draft constitution away from a more inclusive parliamentary system, and then by its style of government. In fact this clawing back happened twice: once after Bomas when the government and parliament seized the people’s draft, and again in 2010 when the politicians seized the Committee of Experts’ draft.

So from a parliamentary system we came back to a presidential system. At both stages a system of government that was more inclusive and had been produced by a process that was participatory, particularly at the Bomas stage, was replaced by a less inclusive, more elitist system, by a small group – and of politicians not the people.  That is Kenya’s story.

The origin of Bomas Constitution lies in the international movement – following the end of the Soviet Union around 1990 – to end the authoritarian regimes round the world. By then Kenya had been independent but its regime was very oppressive. A number of Kenyans, from different groups, had already started the movement for a constitution with fairness of administration and fundament human rights—having being oppressed by regimes of Jomo Kenyatta and Daniel arap Moi. Local and international pressures led to the movement for a truly democratic constitution—a civil society-led movement that culminated in 2004 in the Bomas Constitution.

This was the fruit of a long and complex process in which Kenyans of all tribes and communities, politicians, professions, religions, genders, languages, throughout the country participated. There was enormous commitment throughout the country to the values of the Constitution as it appeared then – and now in the Preamble and Article 10.

The great irony was that the very changes (or reversals) that the politicians desired, particularly on the system of government, but also on devolution, were to the situation that had supported the original dissatisfaction that led to calls for a new Constitution. The reversal of 2004-5, which led to the retention of the old constitution, could be said to have led to the ethnic conflicts of horrendous nature that followed in 2007-8—with enormous killings and stealing of properties.

Eventually internationally sponsored leaders from African counties, led by Kofi Annan, led to peace and agreement among the (mainly) five fighting tribes, leading initially to the revival of Bomas.

But, it having been suggested, by the Waki and Kriegler Commissions in different ways that at heart of much of the problem was the nature of the governmental and electoral system (with that one prize of the presidency) the politicians did it again in 2010 when they went back to a presidential system. Not identical to the old, but with the seeds of the same problem. Basically they refused to learn from history.

And now – through the handshake and the BBI – they are saying the same thing again: that the dominant nature of one office, that can be held by only one community, lies at the heart of our problems. And sometimes it is suggested that they are proposing a return to Bomas.

Bomas

The 2010 Constitution is different from Bomas in what looks like just a few aspects, but these do change its character and functions in some critical aspects. There is no time to explain all the differences between the two as a result, but some obvious ones are the nature of devolution under the presidency which emphasises ethnicity as is obvious from current politics, and which divides voters by ethnicity, while Bomas would have brought together people of different histories, ethnicity, religions, culture, as equal citizens in “one indivisible sovereign nation”. 

The nature of the executive

The most important is the nature of the Executive Authority, which has given too much authority to one person, while Bomas had an arrangement in which the power of the state was dispersed. The decision to change the Executive Authority from several independent officers and institutions to essentially one person to what we call presidential system has led to enormous power in one person. The difference that makes to the nature of the state in the two models is enormous, hidden by similarities between Bomas and the 2010 Constitution.

In Bomas, there would have been two key officers: the President of the Republic as the symbol of national unity to promote the unity of the nation, while we respect the diversity of its communities. The President played other important roles, but was not the head of government – that was clearly  the Prime Minister, who had  a crucial role in the policies and management of the state and co-ordinated the work of the various ministries

The Bomas President would have played a greater role than in other Commonwealth countries with a parliamentary system, in ways that would have  exercised some restraining influence on power. This was broadly similar to the regime that was left by the British – but did give a greater role to the Head of State (the President). And like that, it did not last long. 

The virtues of the 2010 Constitution?        

In August when the 2010 Constitution reached its tenth year there were great commemorations of its success, after numerous years of authoritarian rule under presidents. But I do not see the full impact of the system on state policies. The system of devolution which was to be a major instrument of the coming together of diverse peoples as a nation, has been a disappointment in many ways.

The promises of the 2004 Constitution have largely been ignored. Chapter 3 of that constitution was devoted to national values, principles and goals. These mostly (but not all) survive in the 2010 Constitution. The state is still to promote national unity and develop the commitment of all citizens to the spirit of nationhood and patriotism. Under Bomas, effective measures were to be taken to eradicate all forms of corruption.

Another one has been completely ignored: the role of civil society in governance and facilitate its role in ensuring the accountability of government. Nor have we implemented the principle that no more than two-thirds of the members of elective or appointed bodies shall be of the same gender.

Much less have we ensured the full participation of women, persons with disabilities, marginalised communities and all other citizens in the political, social and economic life of the country. Nor have we eliminated disparities in development between the various parts of the country and sectors of society. Or cared about our environment.

As the nature and status of the Executive in the current Constitution is fairly decisive of the nature of the state, it is important to ensure that the post is occupied by a person with an understanding of the values of the Constitution—our current president falls short of that standard. Whether the parliamentary executive would be more effective, in a number of ways, remains to be decided. It would certainly be subject to greater scrutiny. 

In Bomas an attempt was made to move back to a country marked by democracy, one indivisible sovereign nation, based on values of human rights, equality, freedom, democracy, social justice and the rule of law—values which appear also in the 2010 Constitution. For some, the national values, principles and goals are of greater value than they have been under the current state system.