What are Kenyan intellectuals saying about the current Yes and No debate?
By Prof. Maurice Amutabi
The silence from intellectuals in regard to the current debate on the constitution as the process moves towards the home stretch is not only disturbing but disheartening. The intellectuals seem to have surrendered their role of guiding the thinking in the country to political party hirelings masquerading as consultants. There are all over the place, spewing out positions of their favorite politicians at the expense of explaining what is good and not good about the draft. Those of us familiar with political consultants know that some of them pander to the whims of the highest bidder and will write glowingly about anyone who pays them well. I don’t think Kenyans want to surrender their collective thinking and interpretation of the document to such individuals. In other words, their eyes are focused on the purse strings of their benefactors, in which all objectivity and rationale is lost because of expected monetary rewards. Kenyans need to be told the truth about the proposed constitution than hearing half-truths from politicians.
Kenya needs a new constitution and everyone agrees that the proposed constitution, though not perfect, is a marked improvement to the present constitution. True, there are many flows in the current document that was passed by parliament, and which the Attorney General is preparing for presentation during the referendum. In normal circumstances there are two or three chapters that would have required some moderation, especially chapter 7 on land, particularly on regulation of land use, and chapter 14 on devolution, especially on how the countries will be constituted (although I suspect they will be based on the pre-1985 district boundaries when Kenya had about 45 districts). There are other chapters and sections such as the cones covering abortion and kadhi courts that need not raise any tensions because they are not radically different from the existing law. What is even clearer is that chapter 19 of the proposed constitution proposes two fundamental ways in which amendments to the constitution can be effected after the referendum – by parliamentary initiative or amendment by the popular initiative. So, it is reckless for some leaders to tell people that there is no way the constitution can be amended. There is nothing hard about accepting the draft as it is and then amending it later, simply because past lessons have taught us that committees and commissions never seem to work in Kenya, and however long we take, we shall reach a consensus. The referendum is the best solution, for we have been there before and gained valuable lessons. Kenya’s intelligentsia needs to tell the people that if yes or no side wins, they are still winners, for it does not mean that all is lost.
Kenyans need to be informed about democracy rather than being incited into violence whenever the ballot does not favor them. It tells us that democracy has not been understood, simply because Kenyan politicians often choose to remain in ethnic cocoons while pretending to operate on democratic principles. The proposed constitution has taken away some powers from the presidency, with a strong bicameral parliament and strong county governments. In this new constitution, the presidency will not come with the hen, chickens and eggs. It will come only with the hen. It is just an incubator for the eggs and everyone will have a share of the eggs, one hopes that at the next elections, there is less attention on who sits in State House in Nairobi because counties will also have a lot of power and money. One hopes that there will be less tension in parliamentary races because there will be senate, and country races as well. in the proposed constitution, occupying State House will no longer mean access to unlimited resources, because whoever occupies the place will not have power to distribute land, appoint any number of ministers or dissolve parliament. The occupant will have checks and balances and could be impeached, or recalled by the people. The tenant of State House will no longer have power to appoint and fire without consulting parliament. The tenant will no longer determine membership to many key positions including the judiciary, or service and public commissions. Wananchi will have power to recall non-performing officials and representatives. Parliament will have teeth and county governments will have resources to spend on local development without interference from unaccountable chiefs, DOs, DCs and PCs. Kenyans want access development through good roads, good schools, good health care system, and better security. Perhaps there is need for a new vocabulary on devolution, for the problem is the word and not the meaning because all Kenyans want devolution and government by the people. They want removal of old systems of colonial administration such as the provincial administration, chiefs and rigid laws, for they want to manage their own by elected leaders.
There is need for intellectuals who can speak the truth, from the center (and these are decreasing by the day) to articulate the true facts about the proposed constitution. Unfortunately, the number of scholars who think independent of their ethnic groups has gone down rapidly especially after 2007 when the country became polarized along ethnic lines to the extent that you can almost guess the position of the writer just by looking at their name. It makes one long for those days when Mukaru Ng’ang’a wrote scathing and critical pieces on Kenyatta’s regime, condemning the exploitation of the hoi poloi by the ruling Kiambu mafia who grabbed land at the expense of the ahoi. I also recall Maina wa Kinyatti, Ngugi wa Thiong’o and Micere Mugo doing the same. These were scholars who did not care about those State House dinners and honors. They were fearless, spoke the truth and committed it on paper. In these group of objective scholars were also scholars like Katam Mkangi, Ali Mazrui, Alamin Mazrui, Odengi Awuondo, Michael Chege, Anyang’ Nyong’o, Apollo Njonjo, William Ochieng, Nicholas Nyangira, among others. They were called ‘radicals’ or socialists, and were vibrant as opinion shapers. Many of the ideas that Kenyans knew about the ills and the good of the Kenyatta and Moi regimes were handed down from the pens of these scholars.
Today, opinion columns in the newspapers seem to propagate the same ideas from the same people. Articles by independent writers never see the light of day, unless the political editor is independent to allow an ‘unknown’ scholar and his views to be heard. Politicians are therefore having a field day. They have the microphone at public meetings and press conferences, as well as writing in the opinion columns of leading daily newspapers. Hon. Anyang Nyong’o speaks on behalf of ODM as Secretary General, and on Sunday his pieces are appearing in the Sunday columns reiterating the same opinion. Hon. Kilemi Mwiria attends meetings of PNU and then turns around and writes an opinion in the press. But if intellectuals are not writing, we can not blame MPs for inundating the information space.
What is worrying however is that MPs are also usurping the role of wananchi and almost sabotaging the process by proposing to mutilate the document they received from the Committee of Experts on Constitutional Review (CoE). They had their say in parliament, and once they failed to reach a connsenus, it is only fair that they leave the process to ordinary wananchi who have not had a chance to examine and debate the document. They should not extend their differences and hatred for each other to the streets and rural areas. I know that scholars, like journalists, are supposed to be mirrors of ideas in society and reflect back what the world is thinking. But I also know that scholars are paid to think, and provide simple answers to complex situations. They are supposed to chew on hard issues and digest and pour them out in a language which can be understood by the majority. I have read all the draft constitutions begging with the Bomas Draft, the Wako Draft and the various drafts produced by the Committee of Experts on Constitutional Review (CoE) and PSC in parliament. They all show areas that need change.
The proposed constitution seems to echo the views of Kenyans. There is a similarity in the findings of the Committee of Experts on Constitutional Review (CoE) and those of the findings of Ghai Commission (Bomas Draft). It is apparent that a significant majority of Kenyans want resources to be shared equitably and are by this very logic, largely in favor of federalism. But this arrangement is fragile because of the different interpretations of what federalism means to some people. To people like Daniel Moi who were in KADU in the 1960s, they see federalism as the KADU idea of ‘majimbo’ but new generation leaders like Raila Odinga, Wliima Ruto, Musalia Mudavaadi and Najib Balala, they see majimbo as federalism and devolution. These differences of perception account for the current hullaballoo and apparent confusion about this and the the Committee of Experts on Constitutional Review (CoE) and members of parliament are right in not incorporating it until such as time when Kenyans would be educated about devolution, at which point they can amend the constitution to incorporate it. Chances are very high that once they see the benefits of county governments, they will jump on the idea of regional government quickly. There was a lot of resistance in Uganda when the NRM introduced the five levels of government from L-1 to L-5, but today, some are wondering why they did not use it earlier.
Research on constitutional making from the 1960s in Kenya reveals that the process is often hijacked my special interest groups which always try to sabotage it in order to avoid being accountable to voters and for their ill acquired wealth, especially land. They are keen to continue hiding under the status quo in which they have stolen millions of tax payer’s money. That is why they are often opposed to land and other reforms. Many also regard themselves as life members of parliament and any form of devolution is seen as an affront to their positions. As soon as land is discussed, they hijack it and begin to talk about ethnic clashes, and yet the two are not connected at all. The way the draft constitution is being debated is clearly wrong, for one sees a clear intention to mar the truth and scare Kenyans. This reveals a serious gap in the knowledge of how a constitution works. In fact there are some who have gone ahead to suggest a yes and yes vote on the referendum. Others have called for a consensus so as to avoid tensions. If that were the case, then it would not be called a referendum.
However long the debate takes, not everyone will be on board at the end of the day and the referendum allows the majority to decide. Kenya cannot pretend to be a democracy if it cannot deal with the principles of democracy where you agree to work with the winner. Of course democracy as perceived and practiced in the North cannot work in Africa due to obviously different local dynamics at play and that is why the constitution was taken to the three levels. Of course we agree that the winner-takes-it all type of democracy is unAfrican and is only suitable where the majority is constituted by variant interests that are sensitive to the views of the minority such as the church leaders and their call for revision on the clause on Kadhi courts and abortion. Those who have more than 10,000 acres need not worry about anyone taking their land so long as they are using it. What the new constitution proposes is to do away with land speculators and land owners who engage in hoarding land. The government of Kenya owns enough land and is not about to take anybody’s land.
Prof. Maurice Amutabi teaches history at Central Washington University, Ellensburg, USA.