Is it possible to have an open debate on the areas of disagreement that have emerged on the Kenyan constitution? Theoretically, yes. Realistically, no.

It is increasingly clear that the protagonists who have emerged are being dishonest.

We have all spent a great deal of time trying to respond rationally to what have been placed on the table as rationally considered positions.

We have done so in the belief that reasonable accommodations can be reached.

But what is on the table, it appears, is not what underlies these positions – and the underlying motives are both hidden as well as more emotional than reasonable – and thus far more difficult to engage.

Take this week’s about-turn by parliament on the consensus-building retreat. It took many by surprise.

Why the insistence on staying in parliament to debate the proposed constitution by, in particular, the Orange Democratic Movement (ODM), especially when a member of the ODM had actually moved the motion to adjourn for the retreat?

The answer was that the ODM wanted all debate to be in the public domain.

The reason for this is obvious if one goes back to the first retreat of the Parliamentary Select Committee to consider the draft constitution first proposed by the Committee of Experts.

The ODM’s representatives to that retreat were not only unable to maintain cohesiveness among the troops – given the apparently common ground between some of its troops and the Party of National Unity (PNU) – the ODM was also absolutely outnumbered in terms of technical support.

Why that is so is a question that the ODM’s leadership needs to seriously consider and address, because finding itself so outnumbered has happened before, on matters of equal importance, including its handling of the Independent Review Commission.

Something is clearly wrong with it when it comes to preparing and strategising for processes that matter.

But that is an aside. The point really is that the apparent decision was to let matters lie at that retreat and resume the battle in parliament, where the positions of individual ODM members would be clearly visible to the public (and contrary positions thus more difficult to take) and where the PNU’s technical support team (drawn also from public officeholders, it must be said, which is not acceptable for party matters) could not hold so much sway.

This is another example of dishonest engagement.

Take the position of almost all the mainstream Christian churches (minus that of the Seventh Day Adventists) on the Kadhis courts.

Supposedly rational position after rational position has been trotted out on why these courts should no longer be entrenched in the constitution.

The most seemingly logical argument has been that Kenya as a secular state should treat all religions equally, which conveniently ignores their simultaneous demand that the constitution should close all legal doors on choice and the termination of pregnancy, which is a religious rather than a secular position.

It equally conveniently ignores the fact that our constitution is actually founded on Judaeo-Christian values, and that demanding that Muslims submit to it without special consideration would be, in effect, to treat Muslims differently.

But that is also an aside, because the real reasons that this position is so strongly held probably lie elsewhere.

Primarily (from my unscientific inquiry into the matter) this is in two unspoken beliefs: first, that constitutional entrenchment of family/personal law jurisdiction would lead, in some unexplained way, to constitutional entrenchment of criminal law jurisdiction (Sharia), despite the fact that I have not heard a single Muslim leader or organisation in this country propose, for the entire span of my not-so-short life, the desire for such expansion and; second, that the experience Africa-wide demonstrates, apparently beyond doubt, that Muslim-majority states have no tolerance for other constitutional values, such as respect for religious majorities.

Ignore for a minute the fact that that we do not live in a Muslim-majority state so the situation feared does not exist.

Ignore too the fact that this is a gross generalisation, even if it were true that previously tolerant Muslim-majority states are increasingly having to deal with the growth of religious fundamentalism.

Ignore also the fact that the growth of religious fundamentalism is also a Christian problem (and I personally would not want to live in a state controlled by either Christian or Muslim fundamentalists).

Focus instead on the implications of this belief, which are that Muslims are homogenous in how they approach constitutional values and religious minorities.

With such a focus it is clear that this belief is not just prejudicial and stereotypical – it is wrong.

Yes, it is true that we all need to focus not just on those discriminated against for one reason or another, but also on how those discriminated against address discrimination themselves.

Recently, for example, a Muslim leader, who expected the broader human rights community to address the fallout of the Al Faisal debacle, refused to shake my hand – presumably because I’m a non-believer and a woman.

And recently too, another Muslim leader (in happy concert with a Christian leader I might add) has clearly been behind the incitement to violence not just against those believed to be gay but also against a HIV/AIDS service provider offering healthcare to men who have sex with men in Mtwapa.

Both of these situations are clearly anti-constitutional values, anti-human rights and anti-rule of law.

But these two situations cannot be taken as representative of the full spectrum of Muslim (or Christian) belief and behaviour. They are not.

Debate on the fundamentals of religious belief is as old as time and as widespread as human beings who hold to a given faith are.

Debate on the relationship of the same to the state is equally so.

Struggles that swing the debate one way or another are inevitable, informed often by experiences of exclusion and how that exclusion seeks to be addressed.

The final point is that we will not get anywhere if we do not have a discussion on the constitution in an honest way, a way that fully unveils all the fears that underlie stated rational positions. It is incumbent on all of us to try to be completely honest as we proceed.

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* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission.
* This article was originally published by The East African.
* Please send comments to [email protected] or comment online at Pambazuka News.