Steve Ouma argues that for the promised social transformation in Kenya to take root, "political class and other parochial interests" have to give way to consensus and truth telling.

The jubilations that followed the announcement of the Grand Coalition cabinet on April, 13, 2008 were expected. In the lips of most Orange Democratic Movement (ODM) supporters the talk was “at least now we shall also share in the National cake” and perhaps not just as “passengers” in government but real actors. Evoking the classical argument of legal theorist Bruce Ackerman, some analysts have argued that Kenya has been in a constitutional moment since the outbreak of the post 2007 election violent protests. My reading is that most of these commentators have not made a full reading of Bruce’s argument- and if they have, then their interpretation of the text is a little off the mark. Bruce argues that constitutional democracy in the United States has evolved along two distinct tracks of lawmaking. One track is that of “normal politics,” the executive, legislative, and judicial branches of government make decisions on behalf of citizens in the absence of high levels of citizen engagement. The second track is what he refers to as the “constitutional moments” These are times characterized by sustained citizen engagement and mobilization and demand for social transformation. This track is therefore one of “higher” lawmaking enterprises.

During these constitutional moments, the people themselves assert their supremacy, and demand sweeping changes in the structure of constitutional democracy. When American democracy has functioned on this second, “higher track” of lawmaking -- as when the constitution itself was framed, when the country emerged from its civil war and brought an end to slavery, and when the federal government dramatically expanded its intervention in the national economy during the New Deal of the 1930’s – governing institutions were fundamentally reshaped.

By all measure, the Prime Minister Raila Odinga’s and President Kibaki’s hand shake and the subsequent deal, legal and constitutional changes have not generated such heights. In the recent history though, when Kenya experienced constitutional moments was the case during the 2002 elections and at the National Constitutional Conference held at Bomas of Kenya (popularly referred to as the Bomas conference). Before the conference, Prof. Yash Pal Ghai’s Commission had gone round the country listening to the people. After many years of misrule and oppression Kenyans used the Ghai hearing sessions as moments of reviewing their past and defining the future. Through Ghai and his team they demanded a presidency that did not replicate a god; one who was not above the law or omniscient. As, Barth (2005), notes the Kenyan president is like a Greek god- pompous in benevolence, and lethal in malevolence. On the super-centralized government framework, Kenyans lamented that they work so hard deep in their villages, and generously give unto “Caesar” through exorbitant taxes, but have no say on how “Caesar” shares out the national cake. For this reason they demanded to be allowed to participate more prominently in the way they are governed, and the way their resources should be shared. One cannot side step these moments simply because there was no violence associated with them. These were constitutional moments.

After the 2002 National Rainbow Coalition (NARC) velvet revolution, the clarion call “yote yawezekana bila Moi”( all is possible without Moi), was all over the air and there was increased vigilance by the citizens. In assertion of their supremacy, citizens arrested police caught extorting bribe. Workers in the Export processing Zones took to the streets in March 2003, to claim better wages, collective bargain agreement and justice relation in production. And most important, there was pressure on the NARC administration to fast tract the constitutional reforms- which in their pre-elections pledge, they had promised to do in 100 days. When Bomas re-opened, the debate was robust and unstoppable. Kenyans wanted wide sweeping changes in the structure our constitutional democracy.

The struggle was so intense that it finally polarized the country at the referendum. While there were other issues on which the “NO” and “YES” side differed and put forward passionate arguments amidst propaganda and mudslinging (which are common in vote-wooing campaigns), the subject of the executive and devolution of power was the real water shade. Evidently, most Kenyans wanted and still want a less powerful executive. These were constitutional moments which simply lacked a midwife. It is the frustration and abortion of these moments that created the recipe to the Post December violence pushing t the Country to its death bed.

Kenyans therefore know what they want and have defined it rather well during the 2002 and 2003 “constitutional moments”. These moments have been frustrated by the political class and other parochial interests. It must be in realization of this fact that the president quipped while making his contribution in parliament on the National Accord and Reconciliation Bill 2008 that “even Orengo alone can now write the Constitution”.

With this clarification, what Kenya is going through now can best be described as a moment of liminality. The theorist, Victor Turner (1922-83), introduced this concept in his famous essay “Betwixt and between; the liminal Period in the Rites-de- passage”. His thesis was focused on rites of passage and more so initiation. Turner regarded rites of passage and in particular initiation ritual, as a process of transformation whereby a person moves from one defined state to another, with an intervening period of uncertainty and crisis. It is this state of crisis- liminal stage – that is the focus of the ritual, which seeks to control it and to impose the values of the society upon the wavering individual who for a short but critical period, is in a “gap”. In this “gap” between social status, neither the old nor the new rules apply and the individual is compelled by the society to reflect on her situation, her place in the society and indeed the existence of the society as such.

Going back to the 18th March parliamentary debate ,perhaps this state of Kenya’s liminality was best captured by the Hon. Minister for Justice and Constitutional affairs who in her contribution reminded Members of parliament that the amendments the National Accord and Reconciliation Bill sought to make to the Constitution “is temporary, pending the full review of the Constitution.” The Country is therefore between the new and the old legal order, between authoritarian presidency and another centre of power, between a presidential democracy and parliamentary democracy, between an open and a closed society. One must also recall that the National dialogue Committee is still in session and its Chief mediator, Mr Oluyemi Adeniji, was in the parliamentary gallery on 18th March. What the Committee has been doing is to assist Kenya to reflect on her situation, her place as a member of regional and international community and indeed her own national identity.

The liminal period is also the state of truth telling. Within Victor’s analysis of initiation, it is during their period that the individual is taken through the rigor of community secrets and is invited to understand the truth about the community. Kenya intend to start two truth telling process. One shall be under way soon and that is the Independent Review Committee (IREC) whose mandate is to probe the presidential election fiasco that plunged the country into crisis. The other shall be the Truth, Justice and Reconciliation Commission. The common objective of the two parallel teams is to define the elusive truth. This shall be the most trying moment as truth is ultimately a matter of socially and historically conditioned agreement. This means that what the various parties may see as facts, may well depend on their vantage point of seeing the world.

It is only when this consensus is attained that the country shall move on towards the social transformation that we have been yearning for and create a new moral code and national physique. This new Kenya must be reflected in the new constitution whose time line has now been given as twelve months. Liminality is a creative and critical state of being, it is how best all Kenyan stride through it that shall determine our reintegration amongst ourselves and with the international citizenry.

*Steve Ouma is based at the Faculty of Arts, University of Western Cape, South Africa.

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