Discussion among Kenyans is riven by disagreement and questions over the handshake, without a useful platform from which to assess its limits and benefit.
I believe that this dialogue must move beyond the politicians. What does the handshake on March 9, 2018, between President Uhuru Kenyatta and his rival, former Prime Minister Raila Odinga, mean for them and for the country?
It is important to recall the promises of the handshake, premised on the belief it was to lead to a new birth or baptism of Kenya. We can ask the extent to which the handshake was a valuable and effective initiative towards a united Kenya. Did it move Kenya from being a country of law to a county of men, by creating incentives for not subjecting all actions of government under law?
In broader terms, this article discusses the informal constitutional operation by the handshake. Despite some benefits in terms of promoting peace, there are challenges it poses to democracy and the 2010 Constitution.
These issues are interrelated and mutually reinforcing. The two handshake partners converged their interests and roles informally, which significantly undermined the constitutional order, design and balance on functions and responsibilities of the government and the people.
It would perhaps be more accurate, then, to review recent debates and arguments that in a constitutional democracy rooted in the rule of law like Kenya, the handshake has often led to the violation of democratic values of transparency, accountability and predictability in the rule of law.
It would perhaps be very naïve to deny that many Kenyans love or like the handshake. Similarly, these people also hate its jurisprudence as it presents one of the worst times in the rule of law.
The concern is that the handshake became “time of light and darkness” with numerous contradictions. It promised to unite but it also excluded others, promised rule of law but also led to a period with the highest number of court orders violations throughout our history. They nevertheless managed to avoid the deeper and broader issues of Kenyans and reengineered the 2022 succession politics.
In recent years, there has been a depressing norm in Africa. Despite the great constitutions made in most African states, the truth is that the life of Africans and practical governance of these states are not the subject of the great constitution text but informal negotiations among political actors.
A great example of this is the handshake in Kenya. It manifested how the informal constitution can be more important than the formal Constitution and how a bargain in the shadows of the law by two leaders can entrench itself.
As the President and the opposition parties became interdependent and united, it was desirable in some areas, but in others, the alliance was crippling, because both the government and the opposition lost their primary purpose in society.
True to our calling and priesthood, in this sense, I love the handshake, but I hate its jurisprudence, which reconceptualises the role of civil society and makes opposition an integral part of the government.
There are concerns that handshake affected the time-honoured principles of due process of law and the power of the people. The handshake jurisprudence shifted the bedrock democratic principle and ideals.
This resulted to making the minority in Parliament and the opposition leaders under Nasa, including Raila Odinga, Kalonzo Musyoka and Musalia Mudavadi, unable to articulate or defend the interests of Kenya when those rights were violated by the government.
By the same token, this is further manifested by the fact that certain activities of the government were presided over by Raila and various Cabinet Secretaries went to his offices to brief him of the government's progress.
They also sought his advice, a role not enumerated in the Constitution but relying on the goodwill of the President. For purposes of constitutional competence, these actions are characterised as those coming under the informal constitution because they have no constitutional backing.
Unfortunately, these actions made it very difficult to practice justice and enforce the limit of the power of the President or enforce that limit. That is to say that sovereignty, which belongs to the people under the 2010 Constitution, according to the government, now belongs to both the President and the people.
With increased assertiveness and cynicism, the President pursued the formal change to the Constitution. To further illustrate the norm-setting power of handshake, the President appointed the Building Bridges to Unity members and numerous works towards it.
Along with the executive power of the President, the presidential power under the Constitution gave patchwork of grounds for him to use taxpayers' money on the BBI exercise. It also gave a patchwork explanation that the President has the function of promoting Kenyan unities under the Constitution.
According to the courts, the presidential prerogative to deploy his office to bring the country together and address political challenges as a political and legal obligation enabled the President to undertake the famous handshake. Although handshake is purely political, its effect is approximate to binding legal responsibility.
As a matter of fact, here lies the problem of the handshake. It remains the worst guardian of our Kenyan society. A great example is how within no time the handshake came up with the nine-point agenda, basically the main problems in Kenya that kept the society divided and In conflict.
The handshake has become a poor guardian for government restraint by law. It has also failed to maintain legal order and has tarnished the law. It did succeed in maintaining social order through peace and stopping violent protest by opposition supporters.
Finally, the handshake failed the rule of law by failing to restrict and limit the law-making power of the government imposed by the 2010 Constitution. Because this gave birth to BBI, which was the 2021 (Constitutional) Amendment Bill.
These constitutional amendments were not legitimated by the 2010 Constitution ,which provides for who creates laws in our democratic state — and that excludes the President.
At its core, look at the nine-point agenda and great justification for why it formed part of the issues behind the handshake. Clearly. they identified gross inequality in Kenya and promised to lay the foundation of equality. Inequality is thriving and there are unequal opportunities and rewards for different social positions or tribes within the society.
However, here lies the problem, whilst inequality may manifest in many ways, its cause is usually political, patriarchal or structural, yet the solutions given do not touch on any of these roots of inequality in Kenya but entrench the same structural inequality and internal colonisation.
Stated another way, inequality is the fallout of discriminatory practices, which may be intentional or not intentional. In this sense, the BBI then increases exposure of the vulnerable groups to exclusion and unequal treatment by entrenching the one-man, one-shilling mantra, which will move to the exclusion of underdeveloped parts of Kenya that have low population.
While on its face value, other Kenyans argued that the revenue formula is not discriminatory, a utilitarian look at its consequences will reveal its ability to expand inequality. How the present attitude that I can do whatever I want came about is easy to see.
In conclusion, the handshake, indeed, pushed the boundaries of the Constitution and constitutional amendment. The spirit of selflessness and fire of commitment to the cause of justice and human rights that animate these handshake promises immediately shifted to a self-serving framework where citizens are only a means to an end.
It is all error as I pointed out, the important protection of our law is to protect us against the intrusions of our own government whether there is peace or no peace.
I found it unnecessary to discuss the argument that the 2010 Constitution has no role for the opposition and that after elections, every party metamorphosed to be government and therefore no one was betrayed or short-changed by handshake.
According Gorge Orwell, the creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say.
But fortunately our Constitution is a thoroughbred African saluki dog that can bark and bite, so we are safe.
Dr Duncan Ojwang, Dean of Africa Nazarene School of Law
WATCH: The latest videos from the Star
