Mutuma Mathiu
22 June 2008
column
Nairobi — There is nothing as frightening as failure to learn from history. Kenya's constitution-making efforts have followed the same path: A committee of MPs is put in charge of the process that we are all supposed to take part in, a process generally referred to as a people-driven thing.
This formula, even after 10 years of trying and pouring money down the toilet, has not worked.
When we started asking for "change" and a new constitution, I was a young man at university. Now I am a middle aged man thinking retirement, and we still don't have a new constitution.
There are two parts of this whole thing which require a rethink. First, I don't know from which NGO we got the idea that if we sit down as citizens, we can write a constitution.
I am no longer convinced that we can. That's a job for people who are trained and experienced in those kinds of things.
The notion itself is very attractive, very democratic. It shows that we as the citizens are in charge of our lives, neighbours putting aside their hoes to sit under a tree and agree how we want to live together.
Very romantic, not very practical. This thing of delegates living in a hotel and being wined, dined and wooed by competing vested interests makes a complete nonsense of trying that route.
Besides, there is always the risk that some delegates wouldn't tell a constitution from their left elbow having no clue about such matters.
Mistake number two is putting the politicians in charge of the process. You need to be a complete idiot to invite a Kenyan politician to adjudicate in a process in which he has a direct interest, particularly if that interest touches on his ego, his career or his pocket.
The tragedy of our constitution-making is that it has always been the battleground of power at which the demands of new elites against the more conservative and wealthy tribal and political elite were to be resolved.
When you peel off the sugar coating, the central quarrel in Kenyan politics can be reduced as thus: You (this or that tribal elite) have eaten and ruled enough, now make way for us (this or that tribal elite).
The arguments about performance and leadership are merely the icing, I fear, just the palm wine with which the more unpalatable tribal and economic political reality is consumed by us, the stupid public.
Which is why draft constitutions tend to be bulky and complicated. They try to cover a wide field of grievances, interests and so on.
They also try to resolve other social and economic issues, which are probably best left to other forms of law and public policy.
For example, efforts have been made to anchor the pillars of a welfare state in the constitution through the recognition of such things as decent housing as a basic right.
Is this the best way to deal with social and economic issues? Doesn't this just require a policy response? Does making something law necessarily bring to reality that which does not exist?
If Norway writes a law to provide its people with this or that, it is right and proper because it is an oil-rich country with a small population. If Kenya copies the same law, it will amount to baying in the proverbial wind.
In my view the new constitution should be a document of simplicity and brevity; it should seek to capture the aspirations of Kenyans to live in a peaceful, united, prospering and equal nation.
It should also respond to the essential weaknesses of the State, as exposed in the politics and events of the past six months.
Coming, finally, to the point, I was gratified to read in the Kenya Times, that the mediation team had seen these difficulties and responded to them in a manner that one can describe only as most satisfying.
I have not read the Bills yet and I am basing my views on the newspaper report according to which the draft laws have closed the door on all those officials of the Constitution of Kenya Review Commission.
We are not going to have a Bomas, thank God. And the rules have been tightened to remove the control of politicians over the process.
The review will be conducted through two organs: parliament, through a parliamentary select committee, and a committee of experts.
The political elite will be able to nominate their preferred experts through the PSC, but the other number will be nominated by the Panel of Eminent Africans who were negotiating peace here after we messed up our country.
I think this represents the best opportunity for a new, sensible constitution for this country, assuming of course that MPs will pass the Bills without amendment and the President will sign them.
One more thing; the warring politicians are now in one army, the grand coalition, and so long as they are in agreement, then the chances of a new constitution being ratified are much higher.
As you may recall, there are Kenyans who don't read these things and are happy to just wait for their leaders to read and render judgment, which judgment becomes everyone's.
Constitution review? Important but, yawn, yawn.
The statement issued by the government on Thursday asking Zimbabwean President Robert Mugabe to ensure a free election in the next round, was weak and equivocal.
How can there be a free election when Zimbabweans are being kicked out of their homes and others killed? These are not conditions for an election, free or otherwise.
We, a country where people have been massacred over politics, would not hold an election in a situation of conflict.
President Mugabe must leave office to pave way for a government of national unity which will reconcile the people, repair the ruined economy and prepare the country for proper democracy.
The re-election of Mr Mugabe, under whatever circumstances, will kill Zimbabwe. The country is broke, its currency worthless and its innocent people scattered to the four winds.
Mr Mugabe is an insensitive man, a man who thinks his views are more important than the welfare of his people. He has no place in leadership. But he has plenty in retirement.
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