CONSTITUTION CHANGE DEBATE

Why Uhuru's Madaraka Day speech on BBI was double speak

Uhuru, Raila fighting to reverse Wanjiku’s win

In Summary

• President Kenyatta and Raila are fighting a rear-guard action to reverse Wanjiku’s win and return the Constitution to the government.

•That is what is behind the President’s cryptic talk equating Kenyans’ exercise of sovereignty with cooperating with the government.

President Uhuru Kenyatta greets ODM party leader Raila Oginga at the Madaraka Day celebrations
President Uhuru Kenyatta greets ODM party leader Raila Oginga at the Madaraka Day celebrations
Image: DANIEL OGENDO

President Uhuru Kenyatta likes to speak in mysterious ways. In his official speeches on national occasions, he is wont to employ doublespeak, to use cryptic phrases, which deliberately obscure, disguise, distort, or even reverse the plain meaning of words. His Madaraka Day speech was no different.

Smarting from his loss in the courts, which, in a widely hailed judgment, had declared his and his brother Raila Odinga’s pet project, the Building Bridges Initiative, unconstitutional, the President railed against what he called “constitutional rigidity”.

Quoting the late Tom Mboya, he declared that autonomy and self-rule were not ends in themselves but means to an end — the end being cooperation with the government.

He further defined self-rule as “the granting of opportunities, accompanied by the burden of choice” proposing that this created a “paradox of choices and freedoms”,  which applied to both individuals and institutions.

What does any of this mean?  Freedom is doing the government’s bidding? It is the government that grant us freedom and rights?

The President didn’t stop there. He went on to suggest that the exercise of independence by institutions created by the Constitution “has stretched our democratic boundaries to the limit [and] bent the will of the people”.

He ignores the fact that it is the people who, in the face of government reticence and obstruction, adopted the Constitution and insisted on the independence of those very institutions.

All this sounds and is nonsensical. However there is an internal logic, if you accept the premise that democracy is not about the will of the people but rather, about bending the people to the will of their government.

When President Kenyatta says that the annulment of the 2017 presidential election and the binning of a constitutional amendment process — both of which were not carried out in accordance with the Constitution — were attempts to stop the will of the people, what he means is that the conduct of government, not the content Constitution, is the true expression of the will people.

In this, and to be fair to the President, he is channeling the true spirit of Madaraka Day.

I have often wondered what the difference was between the “internal self-government” we got at the beginning of June 1963 and the “independence” we were granted six months later.

A speech by Lord Colyton in the UK House of Lords on July 15, 1963, a month after Madaraka, offers some clues. In it he describes it as a trial run of sorts. It is little spoken about that Madaraka came with its own constitution, which was meant to be a template for the independence constitution.

While the six-month period of self-rule was meant to, in his words, give “time for the new regional institutions to find their feet before full independence”, when it came to amending the Madaraka constitution, he was clear that “during the period of internal self-government the power to make any change must remain solely with Her Majesty's Government” not with the people of Kenya.

This was a critical distinction and was understood by folks in Kanu who prioritised independence, even under a constitution they did not like with the understanding that, as Jaramogi Oginga Odinga noted, once we had independence, we could change the constitution.

At Independence, however, the power to change the constitution was transferred, not to the people, but to the government, whose mandarins, led by Mboya, set about refashioning it to reconstitute the colonial dictatorship, only with black oppressors at the helm. In fact, so successful was Kanu in doing so that less than six years, we basically had a new authoritarian constitution without the bother of constitutional conferences.

The people had Madaraka, but not independence.

It is important to keep in mind that much of the fight for a new constitution was about who owned it, the people or the government - "Wanjiku haelewi mambo ya constitution” President Daniel Moi declared in the 90s – and that the 2010 document basically undid the amendments that Kanu had inflicted on the independence constitution.

President Kenyatta and Raila are fighting a rear-guard action to reverse Wanjiku’s win and return the Constitution to the government. That is what is behind the President’s cryptic talk equating Kenyans’ exercise of sovereignty with cooperating with the government. And why he is so aggrieved by the BBI judgment, which essentially told him he would need to go back to the people in a constitutional conference, if he wanted the change the basic structure of the Constitution.