Ethnic schizophrenia as a constitutional idea

The Committee of Experts, and every constitutional conference that pursued a balkanisation policy when it comes to devolution of political power, is to blame for the mess we find ourselves in today. Kenya is a nation in name only; in reality, it is a patchwork of ethnic fiefdoms that occasionally unite to do something worthwhile, like cheer for Kenya's world-beating long distance runners. The violence witnessed in Homa Bay on the 16th August, 2026, is a feature, not a bug, of a politics founded on balkanisation rather than unity.

Kenya's politicians operate in a world whose political principles are logical at face value. The country is divided into 47 ethnic fiefdoms therefore, the politics of the country is a contest to build a coalition of ethnic kingpins to take over the national government. Quod erat demonstrandum. What if this received wisdom is wrong?

I am a child of Baby Boomers and I came of age in Nairobi's Eastlands in the 1980s. My brothers and I were among the first cohorts of the 8-4-4 system that prioritised, among other things, a melting pot approach to ethnic harmony. The primary and secondary schools we attended, a provincial one for me and a national one for the pair of family geniuses, were never dominated by learners from one ethnic community. For us, the children we played with and the parents who saw to our care and protection came from diverse ethnic and socio-economic backgrounds. I believe that had this philosophy been translated into the design of the post-2010 constitutional order, the violence we witnessed in Homa Bay might have been avoided.

The divide-and-rule tactics of the British colonial authorities were adopted almost in toto by Independent Kenya, with Old Jomo presiding over the establishment of ethnic fiefdoms that have proven surprisingly resilient. So it is interesting to consider the half-measures adopted by Baba Moi in the 1980s with 8-4-4 to establish a more ethno-neutral system that was eventually abandoned in the wake of the repeal of Section 2A of the former Constitution. Had the post-2002 constitutional reforms taken a chance on an ethno-neutral devolution system, we would not be debating the virtues or vices of the political leadership of any county on the basis of their ethnic identity as we are today.

It is now taken for granted that "the face of Kenya" means not only a geographical balancing act but also the application of an ethnic weight to any appointment to a public institution. Michaela Wrong's "Our Turn to Eat" only hinted at the problem; in the decades since she wrote her book, "eating" is measured by how many of the members of your ethnic community have their noses in the trough of public money or how many of them have been awarded public tenders (for which they have no intention of delivering anything other than hot air). This has become such a central part of the organisation of Government that have an entire statutory commission undertaking periodic "audits" to measure how many members of an ethnic community are to be found in a public institution.

But nothing demonstrates our national commitment to the politics of ethnicism than the creation of 46 counties (Nairobi City doesn't count) that are, in effect, established around boundaries that segregate whole populations on the basis of their ethno-linguistic identity. Whenever the question of "development" comes up in the context of devolution, it is tinged with implicit and explicit connections to the ethno-linguistic identities of the protagonists and antagonists dealing with the question. We seem to have accepted this state of affairs by maintaining an active level of national bickering to promote the interests of "our people" whenever cabinet positions and other senior offices in the public service are dished out.

We have accepted as an immutable fact that ethno-linguistic organisation of government is here to stay, protected by the Constitution, and enforced by laws that say one thing and do the exact opposite like the National Integration and Cohesion Act, under which the National Integration and Cohesion Commission spends billions every year to measure how many members of each officially recognised ethnic community are represented in each national government entity - while conveniently ignoring the ethnic composition of the 46 county governments that are almost entirely made up of single ethnic blocs. We claim to be a nation. In actual fact, we are a bunch of ethnic fiefdoms wedded together by a desire to swindle each other in the name of regional balancing.

The Constitution of mta-do

It is a strange thing for a foreigner - even a billionaire foreigner - to wander onto a press conference in Kenya and threaten Kenyans for challenging a project that the foreigner is fronting on Kenyan soil. Yet, in 2026, in front of a live audience, Africa's richest man said he was going to cause "headaches" to any Kenyan who dared to challenge his multibillion shillings oil refinery. The is where we are today: letting foreigners and their money dictate terms to us.

Kenya is a schizophrenic place. Article 42 of the Constitution states that every person has the right to a clean and healthy environment and that this includes protecting the environment for the benefit of present and future generations. Save for the spectacularly and wilfully naive among us, nothing poses such a significant risk to the environment as the oil and gas industry and so it is entirely consistent with the rights every single Kenyan enjoys that, among other things, environmental considerations have played centre stage in the objections to the Lamu oil refinery project.

Kenyans are not foolish people no matter how much we try and paint them as such. We are acutely aware of the economic benefits that a new oil refinery will bring. It is not just jobs. Thousands of workers will need millions of calories of food, and tens of millions of litres of water, milk, and beverages. Bars, hotels, boarding and lodgings, and AirBnBs will make a killing. Suppliers of all sorts of goods and services are assured of a dedicated market. Kenyans are not foolish people.

But it has been many moons since the Rio Conference of 1992 when many of the global principles of sound environmental management were adopted. The oil and gas sector is especially notorious for its deleterious environmental effects. Lamb, the county, is a massive place, relatively sparsely populated, but left no one try and pull the wool over your eyes that the refinery will be in some remote place or its environmental impacts will be negligible. Air, water and soil quality for thousands of square kilometres around the site will be affected and it is up to the Government that has fast-tracked this project to ensure that the economic benefits of the refinery do not come at the cost of the environment.

Article 10 is very big on national values and principles of governance, including pesky values and princes like transparency, which is often taken to mean that the Government will not hide material facts from the people. In Kenya, transparency, according to some, is both a shield and sword: it protects the people from harm but also arms the people with information that they can use to undermine a project. The effect, more often than not, has been ever greater effort by the Government to conceal material facts about "sensitive" projects even as they publicly and loudly announce them in the name of the people. Like I said, Kenya is a schizophrenic place.

What kittle I have been able to observe of Singapore, and the relationship between its government and Singaporeans, is that where there is a high degree of confidence and trust in the state, the institutions of the state and the officers of the state, much can be achieved and conflict that it likely to harm a harmonious relation is mostly easily mitigated because of that confidence and trust. No one will gainsay that there are very few Kenyans who have a high degree of confidence or trust in their government, and that this has engendered suspicion, which in turn foments conflict whenever the Government announces or embarks on a grand project, such as the Lamb refinery.

Efforts at confidence building between the Government and the people always flounder because it they tend to be haphazardly executed and quite often sabotaged from within. There is a hard core at the heart of the Government that thrives in the chaos fomented by the conflict with the people; you have seen them drive into their public offices in Range-Rovers that cost more than the budgets of the departments they head or live in swanky neighbourhoods that would take them several civil service lifetimes to afford. So too in the suspicion swirling around the Lamu refinery, there are public officials (and their private benefactors) who will make a killing ensuring that the conflict over the refinery is never resolved.

One of the reasons why it is easy to foment conflict is, ironically, the Constitution. It is a wickedly complex document, attempting to square so many circles it is a wonder anyone makes any kind of sense from it at all. For example, Chapter Five, which is directly related to the Lamu refinery project because it involves land, does not easily set out what connects all the threads flowing through it. You would think that the link between Article 40 that protects your right to property and Chapter Five was clear - until you read that when it comes to individual rights to property, they extend only to the surface and even then, subject to the State's power to compulsorily confiscate the property "in the public interest". This tension is to be found even in the Bill of Rights itself.

In the sixteen years of litigation by "human rights defenders" and other organisations funded by foreign powers, much confusion has been sowed as to what the Constitution means to the people it is suppose to weld into a nation. The current litigation over the Lamu refinery is part of that Kenyan constitutional tradition of pretending to act in the name of the people  while, in actual fact, ensuring that the people will spend so much time affirming and reaffirming constitutional rights and freedoms they may never get the opportunity to actually enjoy them - all the while, the implementation of the Constitution remains a tug-of-war between the various factions in the Government. It is how, instead of Kenyans setting the tone on how their land, their natural resources, and their Government will relate with a foreign businessman, it is that businessman who is comfortably setting the terms - a mta-do attitude that Kenyans seem incapable of slapping down.