October 20 used to be Kenyatta Day and October 10 Moi Day.
The constitution makers replaced the first with Mashujaa Day but overlooked Moi Day. That lived on in an Act of Parliament — a few years ago brought to the attention of the courts.
But this year Moi Day became Utamaduni Day (and December 26, which had been Utamaduni Day for a short while reverted to be the mysterious Boxing Day).
The Kenya Human Rights Commission nonetheless marked the occasion with an online reflection on Moi’s legacy. Various speakers eloquently recounted their own experiences — showing Moi’s cruelty and other shortcomings. This led Yash Ghai to think about his own experiences with Moi – in relation to making the new Constitution. Part of those reflections follow.
MOI AND A NEW CONSTITUTION
Former Chief Justice Willy Mutunga’s book Constitution Making from the Middle shows very clearly how Moi resisted vigorously the pressure for a new Constitution – and indeed how he reneged on agreements to move to a formal process.
I recall not just how disillusioned Kenyans were with President Daniel Moi, when I became involved in the official process at the very end of 2000, but how critical the foreign diplomatic community was of him.
Various Kenyan activists were so focused on getting rid of Moi that they found it hard to come to terms with the idea of an official process to make a new constitution that was started by Moi. I found and still find wholly this understandable.
I have often thought – why did Moi appoint me? Clearly, he finally succumbed to a degree to the enormous pressure coming from Kenyan and other sources to begin a process of constitutional review.
The intermediary for recruiting me was Amos Wako, Attorney General and my former student. I have often wondered whether Moi thought that somehow he would be able to put pressure on me or in other ways slow down or even frustrate the process.
Wako actually flew to the US where I was teaching temporarily to persuade me to accept the post of chair of the CKRC. As I recall, I agreed to come to Kenya to get an understanding of the situation and to consult friends about whether I should accept the position. But when I arrived, I found my appointment had already been gazetted. I do not believe this was because of any enthusiasm on Moi’s part for a new Constitution.
People will recall that there was a “People’s Commission” established under the Ufungamano initiative. Moi would have no truck with that - but was compelled to agree (if reluctantly) that I could try to affect a merger between the two commissions.
My suspicion was that he hoped to control the official commission. This distrust of civil society and the people of Kenya was also shown by his famous remark about “What does Wanjiku know about a constitution?”
And another notorious comment was something on the lines of the uselessness of a blind man and a woman – referring to the very effective deputy chair of the CKRC, and earlier chair of the People’s Commission, Ooki Ombaka (I am not now sure who the woman was).
It became clear to me after a while that several members of the Constitution of Kenyan Review Commission were secretly briefing and taking directions from Moi – showing his lack of good faith in the process that was supposed to be independent.
Moi never mentioned this to me, but I was told by someone close to him that he wanted to give me a piece of land – indeed I was even shown the land. This was on the basis that I would be accommodating. I of course indicated I was not interested. This as we know was a common practice.
I cannot recall the background but there came a day when Moi denounced me. He indicated lack of faith in the process and said we must have someone “kutoka hapa” – suggesting I was not Kenyan. I assume this was to undermine me or the process. That night, my security (an AP officer) was withdrawn. Whatever the strategy, it did not seem to have any effect.
But though Moi had been planning to give his views to the Commission that never happened.
While it is true that during his regime the official process towards a new constitution began, I would say that the impetus towards such a constitution was widespread reaction against Moi on the part of civil society and that Moi himself felt no commitment to the idea.
I did try to convince him to embrace the possibility of leaving the Constitution as his legacy, by delaying the dissolution of Parliament until the end of this term – which would have been in March 2003.
Instead, he insisted on having the election at what had become the traditional time - late December. Indeed, he allowed the whole National Constitutional Conference (Bomas) to start its work – in the form of a week of pre-conference meetings to orient the members and allow distinguished commenters to debate the draft constitution — only to pull the rug from under the process on Friday afternoon by announcing the dissolution of Parliament.
To be fair, the process was well – and government – funded.
HOW ABOUT OTHER PRESIDENTS
Jomo Kenyatta is on record as having said that he only accepted the independence constitution negotiated with the British to get independence.
And the ink was barely dry before he began to change it – to replace the system of a Prime Minister plus separate head of state with that with a president only. But because he liked being in Parliament he insisted that the President should also be an MP – a sort of hybrid arrangement, with less in the way of checks on the head of government’s powers than either a US presidential style or UK parliamentary style system could have. He did away with the system of devolution that the constitution had included.
In 1969, the constitution was replaced by a new one that incorporated the various changes. And while the 1963 Constitution began with citizenship followed by human rights, the 1969 one put human rights and citizenship after all the provisions about structure and powers of government – a reflection of priorities in the mind of government.
President Moi continued the trend towards greater centralisation of power in the hands of the president. He had the Constitution amended to become a one-party state (in law not just in reality). He abolished the independence of the Judiciary. He reluctantly reversed those changes under great foreign pressure - but the weakening of democracy and accountability was a long-term effect.
Before he was president, Mwai Kibaki was a great supporter of constitutional reform – and critic of the “imperial presidency”. He promised that if he became president there would be a new constitution in 100 days. But in the event it was more than 100 days before the constitutional process even resumed.
That (Narc) government introduced a number of good laws that actually reflected ideas in the draft constitution – as if to say “We don’t need a new Constitution, you have us”. But this reform era was short lived.
And when he did not much like what the process ultimately produced Kibaki sabotaged it, took it over, and changed – yet again – provisions on a parliamentary system of government to a presidential, and emasculated those on devolution.
AND NOW?
It is hardly necessary to repeat the many ways in which our current president defies the constitution. Repudiating court orders (nicely caught by Ozone’s cartoon on Wednesday), insulting judges, undermining independent offices, undermining devolution are all demonstrations of the fundamental disdain for the constitution when it is designed to limit presidential power.
Presidents, and other politicians, tend to treat politics, and the Constitution, as if it were all about them. That is one reason why Kenyans distrusted the BBI.
It’s not. The Constitution is all about you – the sovereign people of Kenya.
