Kenya: The Constitution as a Promissory Note
The people of Kenya should demand a constitution that recognizes inequality and poverty, that is committed to the liberation of women, that sees health and education as human rights, and that addresses land redistribution. Politicians, writes Mukoma Ngugi, should hold the interest of their people above crass political ambition in negotiating Kenya’s future.
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir – "I Have A Dream" - Martin Luther King Jr.
Background
A constitution serves the simultaneous roles of laying the framework that will govern a society and laying in law the promise - the dream - that the society has for itself. It protects gained freedoms and guides and nurtures expansions of freedom. For a government to oversee the creation of a constitution that is both a foundation and a dream, and that is also in the interest of justice served not only for the now but for the future, it must be willing to commit political suicide. It must be willing to write itself out of office when its usefulness has ended. It, within its very own conscience, has to understand the people as the makers of their own destiny and consequently the true makers of history.
The NARC (1) coalition government does not see its role as the bridge to a new Kenya. It sees itself as the new Kenya. Instead of fighting for a constitution that binds future governments to the welfare of Kenyans, it is fighting within itself to safeguard the political fortunes of its constituent members. And KANU, the party that can single handedly claim to have ruined Kenya, is waiting, watching the fissures grow. It may soon find an opportunity to pounce.
If the NARC coalition government could find within itself the ability to rise to the challenge of developing a constitution that sweeps away the legacies of Moi's tyranny and that at the same time holds future governments accountable to the dreams of the people, it would have done enough. And if it can do more in creating the conditions in which the dreams can be achieved, all the better.
But as things stand - and this should be stated boldly and without mincing words - the NARC coalition is on the brink of failing Kenya. It will not be because it shall have done any worse than Moi (the last two years have done more for Kenya than Moi's 24), but because in place of putting Kenya first, it put its own political survival. NARC has become the space in which political egos are vying for power and somewhere, between getting rid of KANU and the elections of 2007, the idea of Kenya has been lost.
Alliance or Individual political Interests?
Perhaps this is the nature of coalition governments. In Kenya, a fractured opposition was unable to get rid of the Moi dictatorship first in 1992 and then in 1997. But it learned that there was not only safety but strength in numbers, and coalesced into NARC. Under the umbrella of NARC one found revolutionaries, liberals, disgruntled Moi-lets, power sycophants, etc, all with the single goal of ridding Kenya and themselves of the Moi government. In December of 2002 they succeeded. Instead of seeing this as the beginning, at the dinner table, they began their war over who was to get the choicest pieces of the nation - the presidency, the post of prime-minister, cabinet posts, parliamentary seats, etc. What of the Nation's future? It remained all but forgotten.
But let us be fair in our criticism – freedom of speech is a foundational right, a platform from which other rights can be demanded - and it exists in Kenya now. Free primary education, even though fraught with fits and starts, is an achievement. AIDS is in the national agenda. There is a debate over universal health: Those in favor of a gradual introduction won, but the debate (2) was there nevertheless. There is a debate over the rights of women. NARC government cleaned out the corrupt judiciary - a move that showed that the political will to do right by Kenya was there. Corruption, even though new and old scandals keep erupting, is at the very least being debated.
In good neighborliness, Kenya has been instrumental in facilitating peace in Somalia and Sudan. Internationally, the NARC government has refused to join Bush's pre-emptive wars. For distancing itself from the Bush government, NARC is facing threats of what amounts to undeclared sanctions. The withdrawal of 200 million shillings intended to aid in the anti-corruption drive, or the tourism advisories or terror alerts that warn Americans against traveling to Kenya, point to reluctance by the American government to support a Kenya that is not in toe with its agenda. Certainly the KANU leadership, with much less commitment to fighting corruption than NARC, got away with a lot more. And here, there are two things that need to be pointed out, the hypocrisy of the West that has never had qualms in supporting dictatorships throughout Africa and Latin America, but more importantly, the dependency of African countries to the West – a dependency so great that cleaning out corrupt officials from the government cannot be done without calling to the West.
These, nevertheless, are not small achievements. But for each of them, one can point to much more work that remains to be done. NARC did not inherit a floundering democracy with a flourishing middle class where liberal policies can hold the seams together – all avenues of hope and recourse had been gutted by the Moi government. NARC inherited a country wedded to neocolonialism and beholden to the IMF and World Bank, that flouted good neighborliness, where a human life could be lost at the whim of the government, and corruption and exploitation were the norm. Poverty is itself disenfranchising, and one needs only to travel from Dandora slums to Muthaiga Estate or walk from Mountain View Estate to the neighbouring slum of Kangemi to understand that the disparity between the rich and the poor will not be cured by free primary education.
Now, one of the ways that a government recognizes the enormity of the task ahead is by entrusting the burden of fulfillment to the people. It does this by facilitating the creation of a constitution which safeguards them against governmental excesses and at the same time holds the government accountable for the welfare of the people. Thus the government becomes accountable not only for the injury it might cause the people, but also for the injury its inaction causes.
Memorandum of Understanding
Yet it seems to me that the search for a new constitution was undermined by NARC even before it came into power. The Memorandum of Understanding (MoU), which was signed behind closed doors and gave Kibaki the presidency and Raila (Odinga) the yet-to-be-created post of Prime Minister, should be considered as not legally binding to the Kenyan people. The MoU was a negotiated (3) settlement between several opposition parties before they were in power, and is not therefore representative of Kenyans. It was, as it were, an example of the carelessness with which the power elite holds Kenyans - that matters that affect the future of a whole nation can be negotiated behind closed doors. And no matter whether one finds merit with Raila or Kibaki, the future of Kenya should not be beholden to promises between two politicians. If Kenya has to have a Prime Minister, first let it be discussed and then justified by the Kenyan people. And if the Prime Minister is to have more powers than the President, then let the Prime Minister be elected by the people and not by the President, as the Bomas draft constitution (4) declares. Why should we practice a democracy twice removed? Elect a President who in turn elects a Prime Minister who is more powerful than the President? Simply put, who ever wields the most power should face the electoral public.
Again we are seeing these back-door negotiations that will produce more MoUs. The one/two-person mini-coalitions within NARC that are emerging give credence to the maxim that politics makes strange bedfellows. Who would have thought Charity Ngilu (5) and Raila (6) would play in the same team in this power game? Thus we have Ngilu and Raila on one side, and on the other, Kibaki supporters, all with one goal in mind - getting the most powerful seat in the nation.
And what of the party registration drive? Again, there are hidden hands with hidden agendas. NARC wants to conduct a registration drive that recruits individual members as opposed to registration through party affiliation. Once people register as NARC and not as members of the constituent political parties, then NARC becomes a single political party under a single leadership. The coalition thus coalesces into NARC. This in turn heavily favors Kibaki since he is in control of the party machinery, thus paving the way for his second term as president (never mind an MoU that gave the understanding that he was going to pull a Mandela and not run again). Or if the search for Kibaki's posterity prevails, his chosen successor is favoured.
With the same move, the Kibaki government is trying to undermine Charity Ngilu and wrest the position of party chair from her. Under the current NARC constitution, the sitting chair in the next general election is automatically nominated. This means that unless Ngilu is edged away from the NARC party chair, Kibaki would have to pit himself against her if he is to run under a NARC ticket in 2007. This is a move that would be very much welcomed by KANU which, without Moi's stick, will encourage a NARC implosion. Ngilu and Raila are definitely for a recruitment drive on individual party tickets. By maintaining party independence, they are setting the stage for other party coalitions outside of NARC to be formed. The scenario whereby either NARC implodes and spawns other coalitions or coalesces into one party under one leadership has been set. Under these circumstances of continuous political machinations, it is imperative that we the people refuse to honor any secret MoU's that bind a whole nation to the political goals of a few politicians.
The Constitution in Balance
Under this whirlwind of MoUs, alliances, and counter alliances within NARC, it is not surprising that the struggle for a new constitution also reflects the goals of political survival. Hence Kibaki passed a bill that allows for the Bomas Draft to be amended by a simple majority. Certainly the first clause to be modified if not all together deleted will be the one calling for a powerful Prime-Minister position. Kibaki, or at least his supporters, have no desire to see him essentially write himself out of office by curtailing his powers following his re-election in 2007. But with Kibaki running or not, there are those who do not want to see the powers of the presidency reduced.
Raila on the other hand will fight such a modification for with it go his chances of becoming the most powerful person in Kenya as a Prime-Minister elected by the President-elect in 2007. He does not command enough support to win the presidency on his own ticket but he does have enough support to throw a wrench into the NARC machinery. Because he cannot win alone, he will try to short-circuit his way into power by becoming the Prime Minister. And in this quest for personal power at the expense of the nation, the creation and implementation of a new constitution is in the balance.
Since the quest for a new constitution has become caught up in the politics of the day, since instead of the Nation's longevity and welfare our politicians are protecting their own longevity, it is imperative that we, the Kenyan people, first oppose MoUs made outside our consent and remain vigilant against other MoUs being signed with an eye on 2007 elections.
It is imperative that we demand a constitution that is cognizant of the vast inequality and debilitating poverty, that is committed to the liberation of women, sees universal health and education as human rights not as a privilege, and that addresses land redistribution.
In the Bomas draft, there is a Bill of Rights that recognizes the marginalized, the principle of devolution and the democratization of power, equality regardless of gender and many more. It is these aspects of the Bomas Draft that reflect our refusal to go back to where we have been and that nurture an egalitarian democracy that we must demand be kept above the fray of personal political ambition.
* Mukoma Wa Ngugi is the author of 'Conversing with Africa: Politics of Change' and Coordinator of the Africa without Borders Conference to be held in Durban, 2006. This article first appeared at
* Please send comments to [email protected]
Notes
1. After having attempted to defeat the Moi party, KANU as separate parties in 1992 and 1997, in 2002, the Liberal Democratic Party and National Alliance Party of Kenya came together to form National Rainbow Coalition (NARC). As a united front, they were able to defeat the Moi government with NARC getting 63% of the vote and KANU's candidate, Uhuru Kenyatta getting 30%.
2. See the article, Kibaki: We Cannot Afford Ngilu Plan by David Mugonyi. Daily Nation, April 7th, 2005.
3. For a good summary of how the MoU was negotiated, see Joseph Ojwang's article, Wrangles in Kenyan Government at www.change-links.org/MoU12.htm
4. For a complete history of the Kenyan constitution review process, visit http://www.kenyaconstitution.org/enter.htm
5. Charity Ngilu is currently the Minister of Health and the NARC Party Chair. In 1997 she ran against Moi for the presidency and finished 5th overall. As leader of the National Party of Kenya, in 2002 she allied with Mwai Kibaki to defeat Moi's candidate.
6. Raila Odinga allied with Kibaki and Ngilu in the 2002 elections. Before that, he had allied with the Moi government but left when Moi chose Uhuru Kenyatta as the KANU candidate. He had also been imprisoned by the Moi government for eight years. Until recently, the relationship between Raila and Charity Ngilu had always been rocky at best.