New Constitution for Kenya

Why quest for a new constitution
may yet prove exercise in futility

By John Nyaosi

The seismic and nightmarish convulsions Kenya went through in January and February this year may probably have been avoided had Kenyans collectively a couple of years earlier acceded to the enactment of a new constitution. The post-election chaos that killed over 1,000 Kenyans and displaced 300,000 besides the setting aflame property with billions would never have happened if the country had a foolproof, time tested , solid mechanism for resolving the disputed presidential election.
Remember the explanation given by the aggrieved parties for not seeking recourse in the courts was that the wheels of justice were pitifully slow, and their impartiality ,rightly or wrongly, perceived as not being as beyond reproach as Ceasar’s wife. What with lawsuits and petitions contesting disputed constituency elections often lasting a whole parliamentary term thereby defeating the reason for petitioning poll results!

The conflagration came as a shock to many and when it lasted, it put Kenya on the same league as ‘failed states’ like Somalia and others where the general rule is survival of the fittest, ‘might is righ’ and law and order an alien thing. As we dithered on the brink even as the political protagonists Mwai Kibaki and Raila Odinga stood their grounds, the world watched with consternation, the orgy of violence flashed on the screens of world television networks including CNN. It was the intervention of the Africa’s eminent personalities led by former United Nation’s secretary-general Kofi Annan that managed to save the country from total annihilation by brokering a peace deal that saw the crafting of a Grand Coalition Government.

A darling of the west at Independence and at par with the so called tiger economies like Hong Kong and the rest, Kenya under Mzee Jomo Kenyatta was particulary in good books for choosing the mixed ecomomy model as opposed to Tanzania’s Socialism or Vijiji vya Ujamaa under Julius Kambarage Nyerere. Kenya which had set off well with high expectations on it development path was nevertheless sadly later to be beset by political rivalry that led to problems of governance, graft and accountability in running of state. affairs. From the Kenyatta era, through Daniel arap Moi’s autocratic era during which the one-party de facto state morphed into a de jure one party veritable dictatorship,and Kibaki’s first one term, the Independence constitution fared badly. Through amendments the Independence document was rendered a pale shadow of that bequeathed to us at independence.
To perpetuate themselves a leader will do anything. Despots like Marcia Nguema of Equitoral Geania, Jean Bedel Bokassa of Central African Republic , Mobutu Sese Seko wa Ngibendu of Zaire, Sani Abacha and the like just to mention, a few, trampled underfoot their countries’ constitutions and rode roughshod on largely docile citizens. Multiparty euphoria later emboldened citizens enough to challenge the tin gods. with demands for constitutional reforms.
As Niccol Machaivelli points out for any politician to guarantee success he or she must live by the dictum: The end justifies the means. You use any means-lies, cajoling , repression, blackmail , demagoguery, doublespeak and obfuscation, to achieve the end. Our politicians have at one time or the other been guilty of all or some of these vices. Machiavelli further counsels that the politician must besides have three important qualities viz: (a)Selfishness, (b) selfishness, and (c) selfishness. For them selfishness takes precedent over the common or national good. If destroying the Mau Catchment will endear a few voters to them , then so be it.
Ideally , a country’s constitution be one able to the see it overcome any crisis however shattering even including the demise of a leader in office. It should spell out to the finest detail how to handle a regime change , at it were , it has a list of dos and donts that safeguard the nation or national good. It should preferably be fail safe.
Even as far back as the monolithic Kenya African National Union .(Kanu ) days, now with hindsight the seeds of what befell Kenya early in the year are discernible.

Reintroduction of multipartyism through repeal of Section 2a of the constitution to allow for competitive politics, saw a proliferation of political parties make a vain bid to unseat Moi since 1992. It was only in 2002 after the opposition big guns united under National Rainbow Coaliiton (Narc) that they vanquished Moi’s Kanu.
It will be recalled that in the run-up to 2002 gereral election, the main contending parties had each promised a new constitution after 100 days in office. But when Narc took power although under its watch there was a spirited attempt to give the country a new constitution, the whole process was stillborn largely due to protracted wrangles on various issues including power Devolution at Bomas. .Then there were the Bomas Draft and Wako draft and even other quasi-official drafts. The most shocking thing was that although the opposing interest groups guzzled close to Shs 4 billion on debates, arguments and counter arguments they couldn’t agree on various issues. Even when it emerged that they were in agreement on 80 per cent of the constitution, vested interests , selfishness, bigotry, sheer greed denied the country a new constitution fours years down the line even when the matter was subjected to a referendum that the government side lost miserably. Disgruntled elements ensured they threw a spanner into the works every time the nation appeared closer to a breakthrough.
It is often said that a people get the type of government they deserve. In other words the pathetic plight of Kenya’s hoi polloi, the poorest of the poor who make up a majority of the 36 million Kenyans-and who live on less than one dollar a day and sometimes nothing- are culpable in some way for the cadre of leaders running the country at any given time as they chose them. So as they groan under the weight of a 26.5 inflation rate, food scarcity and unemployment , they should know they are as much are responsible for the status quo. Through the ballot they picked the pampered Members of Parliament who can afford Shs 3.3 m loans for Prados, and other sleek limousines even as large sections of the country’s citizenry sleep on empty stomachs, have no health insurance, and no tap water and other fairly basic needs like schools and good motorable tracks to transport farm produce. During the Bomas meetings, delegates most of them sitting MPs conspired to shoot down the recall clause that would have ensured that MPs are kept on their toes by the electorate. Granted, the recall clause may be misused by mischievous busy bodies to unnecessarily harass an elected representative, but by and large it is a useful recourse tool for a neglected constituency and can be used to eject those politicians who only go to their constituencies on election day and return their only after the five-year term.
Currently there is worrying talk to the effect that the one year timeframe for the Grand Coalition Government to deliver a new constitution is not enough. One hopes that perusal of the Waki and Kriegler reports will sober up our politicians to see the need for a new constitution before the 2012 general election. Let all patriotic leaders eschew parochial and narrow considerations to fast-track the quest for a new constitution

For as long as we are blinded by bigotry, chauvinistic tendencies to sacrifice the motherland’s national interest in favour of the selfish narrow considerations of clan , tribe or region , so long will we grope in the dark in search of a panacea that will heal the tattered and wounded national fabric.