Monday, November 09, 2020

Only divorce will bring credibility

There are no perfect constitutions. That it is necessary to restate this truism comes as no surprise in Kenya's fractious constitutional debates. On a raft of issues, the Constitution, whether or not it is "implemented in full", faces challenges, some insurmountable and others not. It is therefore, perfectly in order for men and women invested in their own political survival to campaign to amend the Constitution and attempt to persuade the people that the amendments are for their own good. It is up to the people to be informed well enough to make a decision that they can live with.

If there are no perfect constitutions, then it also follows that there are no perfect constitutional orders and Kenya's is as imperfect as they come. There are those who would deny the long tail of colonialism on Kenya's constitutional order, but they are a minority that labour under the delusion that British colonialism was a net good for the peoples of Kenya. It is safe to treat them with suspicion for their constitutional motives are forever infested by hangovers over Britishisms of little constitutional value. On the other hand, it is a bit overwrought to lay all the blame for the current constitutional mess on the British; we have had two decades to settle on a constitutional order that guarantees and protects the rights of the individual; recognises the legitimate place of all genders in public affairs; holds the high and mighty accountable to the people; and forms the foundation for, as the USA declaration of independence says, the pursuit of life, liberty and happiness.

The Second Liberation inspired civil society to campaign on many constitutional reforms platforms. Many can recall the strong positions that the Law Society of Kenya, the National Council of Churches of Kenya and the Green Belt Movement, among others, took on many constitutional questions, quite often putting their members at grave risk of death or injury. The Ufungamano Initiative presaged many of the issues that would form the basis of the Bomas Conference and the work of the Ghai Commission and Nzamba Kitonga's Committee of Experts.

The Building Bridges to a United Kenya initiative - BBI - shares very little with previous constitutional reforms processes in Kenya. It isn't inspired by what the people want or need. It hasn't inspired civil society to participate in the process in ways that bring the people together on common platforms. Instead, it is the knee-jerk response of a political class that is totally divorced from the people and obsessed with the sharing of space at the feeding trough that is the National Treasury.

When we finally confirmed that the new constitutional order had not cured the political classes of their impunity - it still staggers me the number of sitting parliamentarians that were feeding at the NYS I and II troughs - we also conformed that the Ghai Commission was the last legitimate people-centred constitutional reform movement. The CoE wore the veneer of people-centrism but in truth it was a camouflage for the baser political instincts of men and women seeking high office and explains why the BBI is obsessed with the expansion of the national legislature and executive. The people will get a few crumbs thrown to them from the high table but in truth, seven-year moratoriums on HELB loans or whatever it is that forms the sops-for-the-people agenda don't mean much if taxpayers' monies go to satisfying the avarice of less than five hundred highly-paid, highly under-worked members of the political elite at the expense of the remaining fifty million Kenyans rather than regulating the national economy in a way that generates income-generating opportunities for the vast majority of young people of working age.

It isn't too late for the people to seize the moment. It will be difficult and much has changed since the halcyon days of Saba Saba. But civil society organisations like the Law Society still have an opportunity to define the arena in a people-centrered way. In my opinion, the first vital step the Law Society  - and civil society in general - can take is for its members to resign from every single public office reserved for them by Acts of Parliament or regulations made thereunder. It is impossible to criticise the eating culture in Government when you are eating as well, isn't it? The argument that direct civil society participation in public institutions is vital to holding them to account has proven to be wildly optimistic and it is time civil society and government went their separate ways. It is the only way that civil society can credibly hold the government and, by extension state and public officers, to account. If one of the BBI goals were to separate Government and civil society, I'd begin to pay attention to its plethora of self-serving proposals.

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