People’s Constitution

Nearly eight years after the enactment of the Constitution, the issue of its appropriateness has been raised. That Constitution was eventually adopted—after a long period of struggle, fighting strong dictatorial presidents and their colleagues, and after much deliberation, agreeing on fundamental principles and goals, with the huge endorsement of the people.

On the one side, civil society has raised questions—less about the appropriateness of the Constitution than over the failure of governments to honour and observe it (with particular concern on the dominance of the national government). On the other hand, politicians have raised questions about the appropriateness of an executive presidential system, which does not accommodate the diversity of Kenya’s communities (abandoning their earlier period preference for the presidential system). How come politicians and civil society see eye to eye? Well they don’t as I will try to show.

Contemporary constitutions enjoy legitimacy for various reasons. These are usually participation of the people, articulating values and objectives dear to them, a team of impartial and experienced experts to give shape to those values, particularly the structure for achieving them, and finally the endorsement of the draft constitution by their delegates (constituent assembly) or the people directly (referendum). Almost all Kenyans have embraced the current Constitution because it satisfies all these factors—and they know it. Most Kenyans are content to follow and live by the Constitution. It provides the best framework of values and institutions that Kenyans have ever had.

Politicians’ shift to the more democratic system?

Politicians, however, are not prepared to respect and follow the Constitution, and they, ironically, are the group with the major responsibility for implementing, following and sustaining it. Now, it seems, many in that group want to change it—in ways that help them as a class. It is not surprising that many of those who are beginning to campaign for amendments played a key role in sustaining the corrupt and terrible regimes of Jomo and Moi—and are now beginning again to pay homage to Moi. They are maintaining the solidarity of politicians—class before ethnicity, and dynasty before both.

The Constitution does not accommodate the deals that the leaders of politicians are hatching—handshake or not. The Constitution has a strict regime of values and principles and a firm set of rules to enforce them, in which the Judiciary has a critical role. It is to the credit of the Judiciary that so far they have upheld the Constitution, including under pressure from the political class. We all have reason to resent the way Jubilee politicians, particularly its secretary, have questioned the legality of judicial decisions.

It is time now for a more detailed analysis of the proposed changes. It is true that political leaders would like to repeal many more provisions than they disclose now (when they need supporters). They are keeping quiet, for example, about continued discrimination against women and other marginalised groups, and the general disregard of human rights. The principal change they are aiming at is the transformation of the system of government at the national level—from an executive presidency to a parliamentary system.

There are many ramifications (and structures) of this system, but they seem not to have paid the least attention to them. Their main concern is to accommodate the leaders of leading political parties within the national executive: A form of power sharing, not because they see virtue in itself of power sharing, but because having stirred up tribal sentiments in their electoral campaigns, now they find themselves the victims of it.

Their objective is to be achieved by creating the posts of prime minister and a few deputy prime ministers, while maintaining a weaker presidency (and no doubt jobs outside Parliament) and dividing them among the key politicians of the larger tribes. The most recent proposal of this genre, undermining the logic of the parliamentary system, is that no person over 70 years is eligible to stand for the presidency (a rule that Mwai Kibaki fought in Bomas when he was about to touch that age). No prize for guessing which political sub-group has forwarded this proposal, regardless of the fact that it would undo all the efforts after the famous handshake—as—Will Jubilee survive an internal dispute about the parliamentary system?

How about Bomas in toto?

While these “reformers” are tied to the accommodation (or exclusion) of senior politicians from different tribes, there is another school demanding the restoration of the entire Bomas Draft. Raila Odinga has long been associated with this school, and fought hard for it at Bomas. Support has also now come from the scholar-politician Prof Peter Anyang’ Nyong’o, current Governor of Kisumu. The present Constitution does have many principles and institutions of the Bomas draft—but not two critical features, resisted by politicians.

First was Kibaki. When in opposition Kibaki claimed to be bitterly against the executive presidency, denigrating it as an “imperial presidency”. Once (thanks to Raila) he defeated Uhuru in 2002, he became a great champion of executive presidency. He and Attorney General Wako amended the Bomas Draft to return to a presidential system, which was rejected by all the people, except those in the Central province ethnic voting bloc.

Kenyans were back again to the Moi draft until—in the aftermath of the post-election violence of 2007-08—Kenyans and the team of Kofi Annan and other eminent African statespeople forced the Bomas draft back onto the national agenda through the Committee of Experts process.

But again the politicians overturned the proposals for a parliamentary system. When they got their hands on the CoE draft, all political parties at one blow substituted an American style presidential system—without understanding it.

We have come full circle: At least on this point, the talk is all of a parliamentary executive system. But the real focus seems to be on the number of executive jobs like introducing a number of vice-prime ministers (and no doubt other deals). There is no discussion of the way a parliamentary system really works. Not all politicians are enthusiastic: certainly not Deputy President Ruto, who would normally expect to succeed President Uhuru Kenyatta, despite not coming from a royal family. Indeed, he comes from a rather modest one, though now apparently having imperial ambitions, despite having been an ardent “parliamentarian” at Bomas.

Conclusion?

I have taken you through this long history to illustrate how unreliable politicians are when it comes to their interests (which can change frequently)—or rather about our interests. Politicians of the sort we have should not be allowed to put their fingers on our, the people’s, Constitution. Our Constitution is not about institutional arrangements alone. First and foremost it is about the people and their sovereignty—and their legitimate expectations of national unity, the rule of law, democracy, participation, human rights scrupulously observed and promoted, protection of the marginalised (including women), and government which is transparent and has complete integrity.

Reading the Constitution carefully, it is hard to avoid the conclusion that the two governments since 2010 have grossly violated the Constitution, despite the valiant efforts of the Judiciary to keep our rulers to the law. Unlike South Africa where the movement for fundamental political and constitutional change was led by the people, like Mandela, who, after assuming political power, ensured that the Constitution was not merely born but flourished, in our case the political leaders found themselves forced into a Constitution by the people of a draft they did not like. Kibaki and Uhuru, who or whose families amassed a huge fortune when they captured the state after Independence, refused to kowtow to the poor people, and succeeded in negating large parts of our Constitution.

I am not opposed to review of the Constitution, done properly, with as much consideration as went into the original, and done for the benefit of the nation, not of a political class. More on this in a later occasion.

Yash Ghai chaired Bomas (the Constituent Assembly) for drafting the Constitution.