KENYA SUMAKU

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The New Constitution: Discussions about a clandestine copy of the draft

Posted by Popular Ombudsman on November 15, 2009

This Sunday, we shall analyse divergent views expressed by two writers in the Sunday Nation concerning a draft of the New Constitution which apparently has been leaked. It must be borne in mind that the CoE has announced that it will release the official draft on Tuesday (a mere two days thence) but for some reason, the writers feel happy enough to express very strong opinions on the basis of a clandestine copy.

Be that as it may, in an article entitled ‘Why the Ligale Commission Defrauds Kenya’, Dr. Kipkorir, an advocate of the high court says: ”Nzamba Kitonga’s CoE is still dug in finalising the Draft Constitution for publication. I have managed to get a “draft” which the media has already published. Dr Ekuru Aukot, the CoE’s director told me that the draft circulating isn’t theirs! But as history will attest and time will tell, all leaked drafts whether in Kenya or US are always the correct versions. If the draft is CoE’s copy, then ex facie, it is an excellent one.

The draft covers all areas from the three arms of government to Bill of Rights, the environment, devolution et al. In Chapter 14 that deals with devolved government, the country shall be divided into regions comprising Nairobi, regional governments, urban centres and counties.

Above all, the devolved structure shall take into consideration, the rights of communities to live together with the right to associate with other communities. For the first time, our Constitution recognises that Kenyans first and foremost belong to their tribe and secondly to Kenya! It has taken us so long to come to this realisation.”

From a cursory reading of it, Kipkorir gives the draft a thumbs up and argues that the open recognition of Kenya as a federation of tribes is a transformational provision. He argues that devolved structures are clearly defined and their inter-relationships recognised.

Perhaps he gets credibility from news indicating that the cabinet at a retreat in Mombasa seems to be agreed that the constitution draft is fine except the distribution of executive authority. Obviously, there may be politicians who feel that their careers will be in jeopardy if the new structures are put in place and such people will not countenance any changes. However, that is why there should be a referendum on the contentious issues such as executive authority. Kenyans can vote and decide who does what.

On the other hand, Nation columist Mutahi Ngunyi, in an article entitled ”Why I will vote against the draft” (basing his views on the same clandestine draft) says “I read their draft against the Ghai and the Wako drafts of 2005. And I can confirm the following; the new draft is amateurish, inelegant and cowardly. It is the work of intellectual laziness, political naiveté, and downright incompetence. He goes on to say ”Not clever! But equally wrong is the idea of 30 million people voting for a “lion”; an executive president. Both are not an option. But why do I say so? There is a running fear between the dominant and the dominated communities. While the PNU communities have the numbers, they have no seats in Parliament. On its part, ODM has the parliamentary seats, but no numbers.

Let me simplify this. During the last election, both ODM and PNU mobilised three million votes. With the three million votes, ODM “bought” over 100 seats in parliament. With a similar amount of votes, PNU “bought” a meagre 40 seats. If we opt for an executive prime minister, therefore, PNU will be disadvantaged.”

Concerning devolved government, Mutahi Ngunyi says “My second reason regards majimbo. The CoE draft embraces majimbo uncritically. In fact, it sets up majimbo governments everywhere. My problem with this is three-fold. One, the majimbo governments as constituted in the CoE draft are tribal governments. There is a government for each tribe. He goes on to give the other reasons for opposing the clandestine draft “Two, each time majimbo is introduced to our politics, blood is shed. It happened in the 1960s, in the 1990s and in 2007. And because of this history, every majimbo “project” is likely to elicit ethnic cleansing. If this is true, the CoE majimbo “project” will be worse. More so because our wounds are still fresh.

Three, our founding fathers rejected majimbo at independence. And they did so when the country was stable. Why question their wisdom now? Why question it after we fought tribally?”

For what these two articles are worth (speculative at the best), they deserve comment because they create a problem and proceed to make a commentary on it. They purpot to take strong positions concerning a document which the majority of their readers have not seen and whose aunthenticity even the two writers cannot vouch for. But they achieve something else. They have propaganda value. By the time the true draft is released, the public will already have been manipulated to hold certain opinions depending on which writer they listen to. They may not actually read the draft, instead assuming that the analysis has already been done, yet the so called analyses were all speculative!

Dr. Kipkorir made his passing remarks in the process of questioning the value of the “Ligale Commission” vis a vis the outcome of the Constitutional Review process. On that alone he may escape by arguing that it was made in passing. The truth is that the Ligale Commission is a very important instrument to address any perceived grievances as regards the equity of representation across the country. The process has attracted massive numbers of citizens and this means that the public considers the process credible. This is how it should be; listen to the views of people and then make a genuine effort to address the concerns as best as possible and this may involve making compromises where unworkable positions exist. Perhaps the writer should have waited until Ligale and team make their proposals known, then interrogate their value. As it stands now, he condemns an unknown quantity, which may turn out to be Kenya’s escape route.

Mr. Ngunyi on the other hand is on the warpath, against the shadows of fleeting entities.Whereas PNU did not even exist before somewhere mid-August, 2007, ODM did not have much influence before around June, 2007. Yet, he so eloquently captures that the country was divided in 2005, nay from the 1960’s. He then speaks of “ODM communities and PNU communities” as if the communities were born in ODM and PNU. The truth is, they belong because they choose to and can change anytime. Currently NARC/NAK both titans of 2002 are almost completely forgotten! The driving force is not ODM or PNU, it is ethnicity. By creating ethnic community based governments, the new constitution may actually solve our troubles!

He says, any mention of ‘majimbo’ (I do not know if the draft calls them this much maligned term) drives men and women mad and turns them into butchers. The point he misses is this: that during all those years, a federal system was never in place! What is more in all probability, fighting and the existence of the federal system may actually be mutually exclusive because fighting is about distribution of resources. Due to an inadequate system, a few people inflict great injustice on a lot of other people and there is nothing the disenfranchised can do about it. Thus, for example, if the Central Government has not shown lack of fairness in the manner it has invested national resources so far, then the fighting is because we are cursed with the tribe thing. However, if there is lack of equity now, devolution would reduce jostling for central authority and therefore a TURN TO EAT, thus making our elections less acrimonious than they are right now. The allure of and struggle for executive premier or presidents will actually disappear together with Mr. Ngunyi’s argument! This will control the level of recklessness of the executive and allow communities to control their local affairs thus reducing the feeling of victimhood. It is working in many countries around the world.

To address the last point Mr. Ngunyi raises, Our founding fathers rejected it, why question their wisdom now? It can be assumed that “Our founding fathers” by this reference means Kenyatta and his cohort. One wonders if Mr. Ngunyi is unaware of the series of articles in the Daily Nation explaining how Kenyatta and a few of his “founding father” contemporaries acquired hundreds of thousands of acres of land and left millions of people landless? Can we trust the wisdom of their ways which has manifestly failed to deliver a stable and united Kenya for 50 years? Can we allow ourselves to live in their shadows when we can clearly see the constitutional distortions causing us untold suffering that we inherited from them?

The moment to get a new constitution is NOW and Kenyans should not accept any piecemeal changes. The current constitution is a series of patches and someone wants to add another patch but retain the individually juiciest ones. I am violently opposed to that! Cut a new garment and see how it fits, and modify it as need may arise. Mr. Ngunyi here speaks on behalf of reactionaries who fear the new outlook of Kenya and should be condemned for allowing his column to be hijacked by these types.

Editor

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