Defanged

"We need to move away from the divide and rule system and embrace the inclusiveness on matters of the Constitution"

Members of Kenya's only Bar association are in Mombasa for the association's annual conference. The "theme" of the conference is "An Audit of the Constitution: The quest for constitutional reform and transformation". There is a "sub-theme" as well: "embracing technology in legal practice, litigation and commercial practice". What caught my eye on the law Society of Kenya's twitter timeline was what one of their presenters said about the current state of our constitutional order: that it is a "divide and rule system" which we must move away from.

I am concerned that the LSK is no longer an institution where radical ideas are vigorously canvassed and the 2019 conference seems to confirm this. Kenya is in the middle of a prolonged presidential campaign that has been enlivened by change-the-constitution movements of doubtful utility: the Building Bridges Initiative (BBI) that is designed to deny William Ruto a shot at the presidency and the Punguza Mizigo campaign that is designed to piss off the BBI. Both movements purport to lay bare our constitutional shortcomings and invite Kenyans to participate in charades masquerading as "public participation" in identifying a common way forward. So far Kenyans have not taken the bait - many are concerned more with the challenges of an economy that is firing on no cylinders than with the musical chairs of political leadership their political leaders are engaged in.

What is disappointing in all this is the barely-there nature of LSK's contribution to the discourse which, when it occurs, tends towards pablum that would embarass a first-year law student. Instead of addressing the obviousness of the constitutional sabotage perpetrated by leading members of Government, especially "rogue" members of the Cabinet and Parliament, LSK is happy to publicise its deep concerns for the "divide and rule" system prevailing today. We have forty-seven county governments, established mostly along ethno-linguistic lines. Lines, we might add, Kenyans accepted as the Fourth Schedule to the Constitution. Yet the LSK, despite the real-world problems engendered by such thinking, chooses to concentrate on issues that, superficially, address the ethno-lingustic fracturing of the country but do little to propose solutions to unite the peoples of Kenya.

In my opinion, LSK is no longer merely a stakeholder when it comes to governmental affairs. It has become so intertwined with Governemnt that it is sometimes difficult to tell where one ends and the other begins. It is time for a change and that change must begin by the repeal of the provisions of law that place LSK members as members of public entities. Yes, even the Judicial Service Commission. This marriage between civil society organisations and Government has led to the defanging of the former, and entrenched the impunity of many members of the latter. There is no better example of a defanged civil society than the wishy-washy LSK today.