People United Or Divided? The Challenge Of Pluralism By Yash Pal Ghai

The scourge of ethnicity
Last week Waikwa Wanyoike discussed the role that people play in the implementation of the constitution, pointing out that their effectiveness was negated by their preoccupation with ethnicity or tribalism. We are not, and have never been, a united people. At first the colonists divided Kenya’s communities and then, after independence, our politicians did the same. In both cases the motivation was “divide and rule”. The British were more subtle than our politicians; they managed not only to divide tribe against tribe, but fomented divisions within a tribe. No one knows this better than the Kikuyu.
Then as now, this policy weakened the challenge by the people to the atrocities of the state, and the plunder of the riches of the country. The difference is that the then ruling group was an alien and now it is our own tribes who practise this policy. Jomo Kenyatta’s regime is widely regarded as Kikuyu and Moi’s as Kalenjin. And the African Eminent Personalities yoked Kibaki and Odinga together after the 2007 elections because they were balancing competing ethnic claims. A principal aim of the constitution is to move away from tribalism in politics and establish citizenship as our basic identity.
National unity and political integration
This constitution, as we know, is based on what we hope will become national values and principles. Theoretically, these bind not only the government but all Kenyans. An important — perhaps the most important — goal is national identity and unity. The CKRC reviewed the problems and difficulties that Kenyans had experienced since independence, tried to understand its political and economic systems, and made recommendations on how to alleviate these problems. The most obvious and critical factor was the way in which ethnic affiliations dominated people’s lives, economy and politics. It is clear that ethnicity is Kenya is politically manufactured. Past deprivations and injustices complicate Kenya’s ethnic relations, compounded by collective memories.
It is necessary to provide a constitutional framework in which the effect of ethnicity in public life is eliminated. A considerable part of the constitution is devoted to this objective, establishing ways of ameliorating racial and tribal discrimination, redressing the disadvantages of the marginalised communities, and encouraging people and politicians to focus on national unity and prosperity. They realised that the increasing poverty of people was the result of the corruption of ethnic politics in which those in command of the state began to enjoy wide impunity for their illegal activities — supported by members of their tribe, regardless of their own misery.

The CKRC also realised that while it was important to promote national identity and unity, this should not be at the expense of the rich cultural diversity of our people. There was nothing wrong with ethnic identity and the customs of different groups. The preamble sets the orientation of the constitution in its proclamation: “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.” Numerous provisions are a careful balancing of citizenship and ethnicity, the general and the particular. We can designate this balance as pluralism. Pluralism is different from earlier understandings of multi-culturalism or multi-racialism, which emphasised the importance of acknowledging the diversity of cultures and allowed scope for their manifestation (perhaps as the colonial power did as Kenya moved to independence). That approach emphasised diversity at the expense of unity.
In many ways Kenyans could be said to have shaped and now share a common culture – English and Swahili are accepted as languages in which Kenyans communicate with each other. Until recently, religion was no barrier between communities, while it also provided solidarity among fellow believers. Kenyans may denigrate the culture of some groups, but on the whole diversity poses no problems (except for very religiously oriented people who show a measure of intolerance towards those whose views or practices they do not approve). And while traditional cultures are respected, there may occasionally be a clash between its practices and human rights, especially in respect of the place of women in society. Human rights as they are set out in the constitution are not only about individuals – in the classical liberal tradition – but also recognise the rights of communities and specified groups, like children and the elderly. So for the most part, the constitutional provisions on pluralism are in the domain of the state, connected to public policies.

Achieving pluralism
We have to recognise that achieving pluralism is a difficult and complicated task. The superiority of human rights over tradition or religion is a manifestation of the difficulty and consequent complexity of pluralism. As is also disparities in standards of living and unequal access to the state.
The methods used to achieve pluralism include equal rights of citizenship, including obtaining passports and ID cards — especially because in the past deliberate attempts were made by the government to exclude Nubians, Muslims, and Asians by making it exceedingly difficult to obtain evidence of citizenship. The constitution deals with the privileged position accorded to Christianity in the British regime as well as under Moi by declaring the separation of the Church and State, so that all religions have the same status.
Similarly, while languages of indigenous communities are to be respected and sustained, the official languages are English and Swahili, which fortunately most Kenyans understand — at least Swahili. A key factor which complicates inter-ethnic relations is the disparity in access to education, jobs, housing, opportunities, and wealth. Therefore, a major theme of the constitution is social justice to ensure to all the basic necessities of life, equal opportunities in state and private employment and promotion, and affirmative action in favour of communities or communities, which have been disadvantaged so far.
A particularly important strategy is the transformation of the electoral system, with very detailed specification to ensure free and fair elections, conducted by an independent commission, and the rules prescribing rules for the registration of political parties, to ensure they observe the principles of non-discrimination, reflect Kenya’s diversity, have a national character, and observe principles of integrity and inclusion.
Institutions play a critical role in the promotion of pluralism. The President has a special responsibility to promote and enhance the unity of the nation, as well as promote respect for Kenya’s regional and ethnic diversity. So have other organs of the state, including independent commissions. Devolution is also intended to play a critical role, by giving most communities voice and power to pursue their objectives, and to negotiate with the national government for resources to enable equitable development of all communities. Safeguards are built into the structure of counties as of the national government to ensure respect for minorities
While the constitution seems to have a good scheme for the equality of all communities and the promotion of amity between them, there is no guarantee that politicians and public authorities will support pluralism. There are powerful vested interests who want to maintain the old system in which they were the beneficiaries. The last general elections in 2013 under the new system of political parties and electoral rules to transcend tribalism showed the complete disregard of constitutional objectives and principles. Next week the Katiba Corner will examine how far the objectives of pluralism have been achieved and what are the obstacles to it.

The author is a director of Katiba Institute.


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