During the past few weeks the public media have been filled with glowing accounts of how government and judicial officials, in their rulings and declarations, have been upholding the new Kenyan Constitution and principles of constitutional governance. Two of the most popular of these pronouncements have been the Ruling of the High Court issued on 3rd February, 2011 by the Honorable Justice Daniel Musinga and the declaration of the Speaker of the National Assembly Kenneth Marende on 17th February, 2011.

In his ruling, Justice Musinga said that the nominations made by the President of Kenya Kibaki on 28th January, 2011 to fill the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were unconstitutional because they violated, as he phrased the matter, “the letter and spirit of the Constitution.” Equally important, his ruling concluded that “I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success,” thereby agreeing with the contention by the Centre for Rights Education Awareness (CREAW) and seven other petitioners in the case that the nominations, by including only males, were discriminatory against women and thus violated Article 27 of the Kenya Constitution, which guarantees equal rights for women. The ruling immediately became a cause for celebration among those groups and individuals who work actively on behalf of women’s rights in Kenya.

Speaker Marende, in his ruling, declared that President Mwai Kibaki failed to consult with Prime Minister Raila Odinga as required by the Constitution and the National Accord in making the aforementioned nominations. He said, “It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its committees or by a vote on a motion in the House.” In his ruling two weeks earlier Justice Musinga, after reviewing various definitions of the term consultation and a number of obscure legal cases (including those from outside Kenya), had expressed his sentiment that consultations of some sort probably had occurred between the President and the Prime Minister. Speaker Marende disagreed with that position, saying in effect that the other cases and definitions were not relevant to the issue under consideration. Instead, he emphasized the importance of precedent in making decisions and compromise in consultations, and he found that the President and the Prime Minister had reached no compromise on the nominations. Again, this ruling has been viewed by some parties as a boost to women’s rights because it reflects the necessity of following the Constitution and avoiding gender discrimination in matters of such importance.

It is interesting to note at this point that President Kibaki did not withdraw the list of his nominees from public scrutiny until 22nd February, 2011. Even then, he insisted that he had acted constitutionally in making the nominations, despite the two rulings to the contrary. Perhaps he believes that the Constitution is subject to personal interpretation, a position taken by many politicians in the past.

Thus far most of the public pronouncements about these two rulings have consisted of praise for Justice Musinga and Speaker Marende for their upholding of the principles and provisions of the new Kenyan Constitution. A few groups, such as CREAW and the Federation of Women Lawyers, have expressed publicly their belief that these rulings help the cause of women’s rights in Kenya. All things considered, both reactions are understandable and, perhaps, even laudable. But Kenyans would do well to pause during these early celebrations and examine more closely the national psyche.

A brief review of Kenya’s recent political past is in order here. First, most Kenyans have only known two presidents, President Kibaki and his predecessor, President Daniel Arap Moi, who succeeded the nation’s first leader, Jomo Kenyatta. President Moi held that office from 1978 until 2002, when he was constitutionally bound to leave the position. During most of his tenure, only one political party was allowed in Kenya, making political opposition to the President and his supporters virtually impossible. Additional parties did not arrive on the political landscape until 1992. Thus from 1978 until at least 1992—some persons would contend that there was a longer period—most Kenyans became accustomed to living under the policies of one man and his supporters. In fact, that is what they came to expect. They became, consciously or not, participants in a phenomenon known as social inertia, which can be roughly defined as “resistance to change presented by societies or social groups, usually due to habit.”

Social inertia causes people to resist change in their society, in their way of life, and even in their thinking. When social inertia exists, people are reluctant to change their ways because of complacency, the comfort of the known versus the unknown, and, quite simply, because “that’s just the way things are.” In such circumstances, people tend to protect the old ways and are skeptical about anything new. They prefer to leave things the way they have always been in their society, their politics, and their domains of influence. This phenomenon exists in all nations and affects people at all levels. Tyrants are unwilling to change their despotic ways. Politicians are reluctant to give up their power over others. Women, who have been treated as second-class citizens all their lives, rarely speak out for their own rights.

What is the significance of social inertia for Kenyans right now? For decades, the average Kenyan, particularly the average woman, has become accustomed to keeping silent and maintaining the status quo. When they see any hint of a positive change that promises to improve their lots in life, they tend to remain quiet. Only those groups or sensitive individuals aware of the need for change seize opportunities to promote change. Thus they have celebrations because a judge or a politician has courageously opposed the status quo, as in the cases under discussion in this article. And they are justified in expressing their satisfactions.

But Kenyans must now realize that the new Constitution adopted by a majority vote of the people on 27th August, 2010 is not just another meaningless document. It is the law of the land now. It contains a bill of rights for all Kenyans, regardless of gender. Therefore, when any politician or self-appointed arbiter of social behavior acts or speaks in contravention of the Constitution, it must not be tolerated. Kenyans must adopt this Constitution in their hearts and insist that their rights be upheld by their elected representatives. They must change their old ways of thinking and embrace the change that came with this new document. Equal rights for all Kenyans are no longer just a dream. It is time to demand respect for those rights, not simply whine and meekly give thanks to someone for throwing them a bone, treating them like a dog in the streets. As the old American folk anthem says, “This land is your land. This land is my land.” Hold on to it.

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* Tom Avant is an American freelance writer who lives in the western part of Texas, USA. Now retired from the federal government, his career also includes teaching in college and serving as the mayor of a small town.
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