The wages of constitutional illiteracy

Some time last week I witnessed the limits of education. On a panel discussing something that the Government had done, was doing, was going to do, whatever, a panelist suggested that Kenya would benefit if the "opposition formed a shadow government", the same as existed in the 10th Parliament before the promulgation of the 2010 Constitution. therefore, she saw many benefits in the establishment of the office of the Leader of the Official Opposition as proposed by both the last Jubilee administration and the current Kenya Kwanza one. She, and many like-minded pundits, have given up on the constitutional arrangements we have made for the government and they seemingly have no interest in holding any of their elected politicians to account.

The reliance on magical thinking is distressing, but not surprising. It informs much of the public discourse on public administration and politics. We are susceptible to this kind of magical thinking: if I make this change, that has nothing to do with the underlying issues, I will improve my lot in life. It almost never is true. It almost always leads to more destructive outcomes.

The constitutional structure of the government is not that difficult to discern. It is a presidential system, with parliamentary vestiges no one thought would become a problem thirteen years after we promulgated the constitution. The president, deputy president, cabinet secretaries and attorney-general no longer sit in parliament; parliamentarians no longer sit in the cabinet; and the president can only appoint the chief justice and judges of the Supreme Court with the approval of parliament. Parliament is divided into the majority party and minority party who, collectively, are supposed to oversee the national executive and judiciary (also known as checks and balances). While it is expected that the majority party in parliament will be the president's and deputy president's party, under the current arrangement it is possible to have a divided government where the majority party controls parliament and the minority party holds the presidency.

As a consequence, the Official Opposition is an anachronism from the Westminster system that Kenya did away with on the 27th August, 2010. An Official Opposition is a vital part of a parliamentary system where the members of the executive are elected parliamentarians as well (save for the attorney-general, who is an ex officio member of parliament without a right to vote). An Official Opposition would choose, from among members of its Parliamentary Group, shadow ministers who would lead the questioning of members of the cabinet during Parliamentary Question Time (in the UK, they call it Prime Minister's Question Time).

What President Uhuru Kenyatta and, now, President William Ruto, did was to extend the vestiges of the Westminster system far beyond its utility for the purposes of the transition from the former constitution to the current one. As a result, the general public, including commentators and pundits, are under the impression that the government is still divided into a ruling party and official opposition, rather than the majority party and minority party. Therefore, few see nothing constitutionally untoward in the suggestion that the office of the Leader of the Official Opposition should be revived "in order to hold the government to account" rather than the majority and minority parties holding the executive branch to account as the constitution contemplates.

I am all for inclusion as a way of mediating political conflict; but I don't think it is in the national interest to establish a constitutionally dubious office simply because the incumbent's regime is uncertain about its political legitimacy. From the Yash Pal Ghai commission to the Committee of Experts, the majority of voters were adamant that they did not want parliament and the executive to conspire to undermine the national interest. Most voters wanted a clear separation of the executive from parliament; the independence of the judiciary was taken as a given. President Kenyatta overworked to blur the lines between the three. President Ruto still has the opportunity to reverse course though he appears hell-bent on walking the same path as his immediate predecessor. An office of the Leader of the Official Opposition may solve the immediate political problems of the incumbent; it will do nothing to hold the national executive to account or improve constitutionalism. Only the ordinary Kenyan on the street will come off the worse.

Bullshit reasons and constitutional rights

It's fascinating to watch the libertarians and bill of rights zealots twisting themselves in knots as they argue that political contestation must be tied to some reasonable and rational objective. In their world, the bill of rights does not just serve the purpose of recognising, affirming, protecting and enjoying rights and fundamental freedoms, but in order for the bill of rights to make sense, the exercise of those rights or fundamental freedoms can only make sense if there's a rationale and logical objective. In short, for example, one cannot just pick "demonstration" as the bit of Article 37 of the Constitution of Kenya as the right to exercise, but the exercise of that right must be, and only be, to present a petition to a public authority and that the petition must serve some rational and logical purpose. You can't have a bullshit reason to hold a political demonstration.

Obviously I think that position is, well, bullshit.

You cannot have a liberal constitutional democracy if the limitations on the bill of rights are limitations tied to neo-liberal and capitalist philosophies of utility, profit and economic advancement. The constitution, as someone rightfully argued, serves the people; it is not the people who serve the constitution.

What Raila Odinga attempted on the 20th March was to exercise, as fully as possible, his rights under Article 37. Sure, he "declared" the 20th March to be a public holiday. Only a moron thinks that his declaration was [a] the unauthorised exercise of State authority or [b] an unlawful attempt to establish a government otherwise than in compliance with the Constitution of Kenya. Sensible Kenyans understood that what he was doing was pressing his demands in the language that resonated with the tens of thousands of Kenyans who agree with him. Also, no one can ignore the fact that he ignored the risks associated with his maandamano; whenever he calls people out onto the streets, some of them engage in violence unprovoked. Be that as it may, Mr Odinga and the politicians who joined in his calls for maandamano had every right to exercise his rights under Article 37 even if his demands are utter bullshit and serve no reasonable or logical purpose.

We are repeatedly reminded by a highly-motivated segment of the political and economic classes that "Kenya is a capitalist society" and that political demonstrations, such as those of the 20th March, pose a risk to livelihoods and economic activity and, therefore, they must be tempered. One lawyer had the temerity to suggest that political demonstrations should last, at most, one hour and then the demonstrators should go do something meaningful, like go to work. This is the kind of bullshit that prevents Kenya from doing the work needed to build a constitutional culture.

Obviously I am not a fan of that kind of bullshit.

I don't know if Mr Odinga is on the right side of history and I don't care. I care that flimsy neo-liberal rubbish forms such a firm foundation for the watering down of the letter and spirit of the bill of rights. I care that as a consequence of such subversive reasoning, State officers see nothing wrong in actively preventing law-abiding Kenyans from exercising their constitutional rights, refuse to actively take steps to protect Kenyans' fundamental freedoms, and, instead, provoke violence as part of their strategy for winning (and losing) political arguments.

In my opinion, Mr Odinga, since at least The Handshake, continues to demonstrate why he should bow out of the political limelight. Not because his current political campaign lies on a foundation of bullshit. It does, but I don't care. Not because his hardcore supporters are blind to all reason. They are, but I don't care. Not because his core constituency is a pale shadow of what it was in 2002/2003. It is, but I don't care. It is because he is a man out of time, both with the people he would wish to rule and the ideas he should have to rule effectively. MS-DOS in a world of AI, a rotary telephone in a world of VoIP.

But no matter how over-the-hill I believe him to be, so long as he does not call for the violent overthrow of the Constitution, the State or the government, I don't care that he wants to bring his supporters to KICC every Monday and Thursday so that they can take a traffic-snarling stroll to State House. He can do that every single day for the week to his heart's content. Article 37, which a majority of adult Kenyans adopted at a referendum, affords him that right. The only, and best, way to beat Mr Odinga at his game, is to marshal the political arguments that renders his nugatory. Only good ideas can beat bad ones. Not police batons, teargas and lethal 7.62mm rifle bullets.

Roe v. Wade, in Kenya

The Constitution of Kenya is a hodgepodge of constitutional principles and styles from across the word: South Africa, India and the United States of America. As a result, though it is lauded as one of the "most progressive constituents in the word", it lacks a certain coherence. Even reading the Preamble, one is struck by the fact that it is incapable of articulating a uniting philosophy. It does not have the We-Are-The-First sensibility of the US's preamble; nor does it ring with the fervour of self-determination in the Preamble to the Constitution of India; nor even the declaration of self-determination in the Constitution of South Africa. The Constitution of Kenya is proof that constitution-writing-by-committee doesn't always work.

What the makers of the Constitution of Kenya borrowed from the United States of America isn't even found in the US Constitution: the securitisation of the public service and the culture wars between the broadly progressive left and hard-line white-supremacist right. Of the most destructive elements of US constitutionalism that Kenya has adopted, are the White Supremacist Christian values such as the definition of family and the black-and-white fight over the right to life. In respect of the right to life, Kenya has adopted the language of live-begins-at-conception favoured by the White Supremacist Christian right wing of US politics. Article 26(4) states that "abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law".

The US constitution does not expressly mention the right to life or abortion. The Indian constitution protects life but does not mention abortion. South African declares that everyone has the right to life and the right to healthcare, including reproductive healthcare (which has been interpreted by many to include the right to abortion). Kenya is the only one that goes into some detail regarding abortion, in addition to the right to health care under Article 43(1)(a). Kenya's abortion constitutional provisions are a reflection of the religious and cultural wars among US political actors, and the recent annulment of the US Supreme Court decision in Roe v. Wade, decided in 1973, will further entrench the US cultural wars in Kenya's constitutional evolution.

It is moot that the Government of Kenya relies a great deal on development partners to finance public health services. Among those development partners who help finance health services in Kenya is the federal government of the United States. The funds provided by the US government are provided in accordance with laws passed by the US Congress, including a law known as the Hyde Amendment which bars the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. President Joe Biden eliminated the Hyde Amendment in the 2021 US federal government budget, but the recent Supreme Court decision on Roe v. Wade will surely complicate matters as the Republican Party, which is wholly opposed to abortion, is on the legislative ascendancy and Joe Biden's legislative plans are unlikely to survive the coming losses the Democratic Party will experience n the November 2022 mid-term elections.

Though Kenya is not directly impacted by the decision to overturn Roe v. Wade, the effects of that judgment will certainly affect the US federal government (including its financial assistance to overseas partners), and consequently, Kenya must be prepared to weather the cultural war that is surely to follow. But because we seem not to have developed a constitutional language, philosophy or principle regarding individual liberty, it is likely that the debate that will ensue will be just as incoherent as the preamble to our constitution. Ministries of faith (mainly Christian) that are affiliated with like-minded US (mainly Christian) ministries of faith will lead the debate. Government officials will try to square the round peg of US federal government rules in Kenyans' square peg of reproductive health care needs.

I encountered a band of teenage girls, they didn't appear older than sixteen or seventeen, who were discussing "kutoa mimba ya miezi tatu". At first glance, they wouldn't appear as if they knew anything about anything. But taking a moment to reflect, it is clear that the proportion of mostly-young Kenyans facing difficult reproductive healthcare questions is growing. More and more young people are engaging in unprotected sexual relations, the majority of which is experimental, though a growing number is coercive. Many girls are getting pregnant and are faced with extremely limited reproductive healthcare choices, whether due to legal restrictions, or cultural and religious ones. It is reckless to ignore this growing cohort of young people on the basis of religious, cultural and political decisions made in a country so far away like the US.

Kenya's constitutional debates are obsessively about the organisation of the Government rather than the Bill of Rights and the realisation of the principles enshrined in the Bill of Rights. We worry about the sharing of political power among the same cadre of men to the almost total exclusion of the advancement of the rights of the individual to make choices regarding her or his liberty, life and body. As a result, we are led by the nose by an extremist and vocal religious minority in support of racialist white supremacist principles that have proven to be destructive throughout mankind's history.

There shall be wailing and gnashing of teeth

If you are like me, and I sincerely hope that you are not, then you steer clear of Kenyan news media. Much of what passes as news and political commentary these days is barely-disguised propaganda from, in order of precedence, the president, his embattled deputy, the former prime minister or the satellites of vocal acolytes that carry water for the three principals. Every now and then, has-beens like the former vice presidents and some of the more energetic members of parliament will get a bit of airtime as will the doddery political flies made up of "civil society" windbags that swarm around the high table.

Therefore, it is almost certain that if it hadn't been for the violent rhetoric surrounding the release of the recent Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, the event would have passed me by without so much as a by-your-leave. But, sadly, I happened to come across the spirited whining of the former leader of the majority party in the senate and my spirit is disturbed.

Listening to the poor man, one gets the impression that the BBI, the catchall acronym for the implementation of the Taskforce report, is a matter of such grave national importance that presidential political ambitions shall be made and unmade on the outcome of the process. Our eponymous senator went to great lengths to highlight the crucial weaknesses in BBI (while also bitching piteously about how he and his fellow travellers had been locked out of the process). It never occurred to him to admit that the reason why there was a BBI in the first place is that he, his principals and their political party have done a great deal of constitutional sabotage that necessitates a messy political solution today.

Members of my benighted profession are taught to look at circumstances for what they are and not for what our clients wish them to be. I have witnessed one of my seniors throwing his weight behind some of the BBI report's steering committee's implementation report and, dear friend, my spirit is disturbed because if there's one thing that the BBI in its entirety is, it is that it is proof of constitutional hooliganism of epic proportions. Some may argue that the trigger for the latest round of BBI madness is the Chief Justice's advice to the president to dissolve parliament over parliament's refusal to implement the two-thirds gender rule. Some may say that after a year, give or take a pandemic or two, of the inexorable marginalisation of the deputy president and his acolytes, it is time to put him out of his misery. Still others might say that if there is a way of putting constitutional square pegs in antidemocratic round holes, the BBI is it with its proposals for statutory health commissions and constitutional police councils.

I am of a different opinion. From the moment the reds accepted, with open contempt, the outcome of the 2010 referendum, they have worked assiduously to hamstring everything the constitution stands for, from gender equity to the protection of the rights of arrested persons, fiscal rectitude to the principles of devolution. Parliamentary independence was, and continues to be, notable by its absence. Judicial independence has been the focus of determined violence that it is a wonder that just recently the Chief Justice inaugurated a new court house.

In my opinion, the BBI is a fig-leaf for something that Kenyans are afraid to come to terms wit: the political elite who speak for and about them hate the people. They hate them with a deep and abiding malevolence that is revealed in the policies and laws that are enforced, and the constitutional principles that are exsanguinated in the open, the way sacrificial lambs were exsanguinated in biblical myths. I have no faith that the successful implementation of the recommendations of the BBI Taskforce will re-acquaint Kenya's elite with the basic tenets of constitutional values. In fact, if (or when) the BBI recommendations are fully implemented, I predict that Kenyans will have great cause to regret their choices of elites. Like it is told in the Gospel according to St Matthew, there shall be wailing and gnashing of teeth.