Between 1990 and 2002, the Second Liberation movement forced the Government to confront the nettle that was constitutional reforms. The broad coalition known as civil society campaigned n many fronts and the result was the establishment of the Constitution of Kenya Review Commission whose outputs were the Ghai draft and the Wako draft, the latter being put up to a referendum in 2005. The Wako draft was defeated in the referendum, Mwai Kibaki went on to fiddle with the membership of the Electoral Commission of Kenya, and Kenya descended into an orgy of murder, violence and displacement in 2007/2008.
Between 2008 and 2010, a political settlement hammered out between Mwai Kibaki's government and the Opposition appointed a Committee of Experts to give constitutional review one more push. In 2010, a draft was put up to a referendum and ratified by an overwhelming majority of voters. The violence of both the 2013 and 2017 general election was muted -- only parts of the country experienced violence related to the general elections.
The question has been put, though: did the Government have any hand in the ratification of a new constitution in 2010? Those who are opposed to the Government in its current and former forms have argued that the effort to promulgate a new constitution belongs entirely to non-governmental actors. They argue that because many senior political leaders serving in the Government opposed constitutional reform of any form, the Government, too, opposed constitutional reform. They have made the same mistake that acolytes of ruling political leaders have made, of conflating individual political leaders in the Government with the Government.
Let us look at the efforts of the Committee of Experts. Nzamba Kitonga, his fellow committee-members, and their staff in their secretariat, were almost all non-government officials but their salaries and financing was almost entirely appropriated by Parliament, the legislative arm of Government. Their drivers, security personnel, cars, equipment and offices were procured and supplied by the Government. The law that led to the establishment of the Committee was proposed and passed by the Government. And the referendum that ratified the new constitution was organised by the Government.
The Government may not have been the institution that advanced the cause of constitutional reform, but without Government's support, there would have been no expert committee, no referendum, and no new constitution. We must learn to look beyond the elected members of the Government or the seniormost appointed ones like Cabinet Secretaries, Principal Secretaries and constitutional commissioners. The massive enterprise known as the public service contains women and men who have contributed immensely to constitutional reform, advancing the causes championed by civil society and the non-Government sectors. Without these women and men, many progressive ideas would have been snuffed out before they saw the light of day. They are very much "Government" as the president and deputy president.
These women and men know how the "machinery" of Government functions, which levers to push in order to advance any agenda. More often than not, in the absence of a coherent strategy by the non-Government sectors, these women and men will perform their duty. But when called upon to undertake unlawful schemes for patently unlawful ends, they will rebel, though their rebellion may not be as public as civil society lions may expect. Dismissing them as not being part of the constitutional reform movement is a mistake and declaring in sweeping terms that the are not to be trusted is foolish and short-sighted. If you think that it is right to dismiss and distrust the vast majority of the public service, please try and amend the constitution without its assistance and advice -- and see how far you go.
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