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Kenya: We Don't Need Ethnicity Commission

Owino Opondo

6 July 2008

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opinion

Nairobi — The dark abyss of violence and general lawlessness into which Kenya briefly sunk early this year in the wake of contested presidential poll results is likely to torment the country's history for long.

There are commissions already digging into the reasons that could have led to the flare up and how to avoid such ugly incidents in future. It is not my duty to pre-empt their findings, and this column shall, for now, concentrate on the pulse of Kenya's law making.

Parliament's departmental committee on Legal Affairs and Administration of Justice is this week expected to begin fine-tuning an important Bill and then, in a fortnight, table a report proposing a series of amendments.

Debate on the National Ethnic and Race Relations Commission Bill in the House last week was marked, at once, by glaring differences among members over what they thought caused inter-community disharmony in the country.

Cultural interactions

In its memorandum of objects and reasons, the Bill - sponsored by the ministry of Justice, National Cohesion and Constitutional Affairs - lends its origin to the deliberations of the National Dialogue and Reconciliation Committee, which was formed during the post-election crisis.

The Bill includes in its definition of "ethnic relations" racial, religious, tribal and cultural interactions, and provides for the Commission to ensure individuals or groups don't misuse such important facets of life to lord it over others and re-ignite tensions.

If enacted, the Commission shall have 12 members comprising a chairperson appointed by the President from amongst 15 nominees cleared by the relevant committee of Parliament.

Of these, eight shall be commissioners, while three shall be ex-officio members: the chairpersons of the Kenya National Commission on Human Rights; the National Commission on Gender and Development; and the Public Complaints Standing Committee (Ombudsman).

Fund-guzzling behemoth

Here, the Bill immediately plunges into problems. One, the qualifications for commissioners are too basic and fairly general: a Kenyan citizen, a person of high moral character and proven integrity, and has knowledge and experience in matters relating to race, ethnic and human relations, public affairs and human rights.

The commission is to address matters about ethnic and race discrimination. These are human rights issues and also require expert lawyers, heeled in equality jurisprudence. If that anomaly is not addressed, the commission envisioned by the Bill is likely to be reduced to another fund-guzzling behemoth for the blue-eyed boys and girls.

In the process of nominating commissioners, the Bill allows the minister seven days, upon receiving names of applicants, to forward the names to the relevant committee of Parliament.

However, the proposed law does not say how long the committee should take before sending names of cleared nominees to the minister to forward to the President for appointment. Such a lacuna could create space for mischief and unnecessary obstruction and delays in establishing the commission.

Then the functions of the commission as provided in the Bill are long, winding, hazy, and purely advisory. Why would the public pay heavily for an outfit whose work is merely to give recommendations to the government on ethnic and race discrimination

I refuse to believe that the National Dialogue and Reconciliation Committee - chaired by former United Nations Secretary General Kofi Annan at the height of national strife - transformed itself into the ultimate assembly of Kenya's sages. Now that peace has returned, we must pause and pass the right law.

Cast out ghost

Kenya's successive post-independence parliaments and the entire political class have performed poorly in trying to cast out the ghost of negative ethnicity.

Yet the Bill, at clause 30 says, in part: "The commission may, at any time, submit a special report to the National Assembly because it affects a wide cross-section of the populace and there could be disastrous consequences if a report thereon is not brought to the attention of the National Assembly."

No problem with that. It is the National Assembly to approve the commission's annual budget. But, pray, must the commission wait for a matter which "affects a wide cross section of the populace" to present a report to Parliament? Would this, then, not be a form of discrimination against minority communities and races? This is a self-defeating provision that would chain the commission in a limbo of ineptitude and selective activity.

Rich, politically-connected people and infernal perpetualists of ethnic jingoism, I bet, will find this Bill friendly. For it proposes a maximum fine of Sh50,000 or a jail term not exceeding six months, or both, to those who defy the commission's summons or mislead it altogether by giving false information.

Let's face it; ethnicity is, perhaps the main source of patronage in Kenya today. Some people hold constitutional and senior offices in government and cut lucrative deals with the State on account of ethnicity. This is not to say that the private sector has done any better, save for a few breaks from directing boards and shareholders.

In my view, there should be a department within the Attorney-General's office to deal with ethnic and racial discrimination, with powers to prosecute those in breach things that bind us together.

In Britain, there is the Equality and Human Rights Commission, which morphed from the Race Relations Act of 1976. There, it was passed into law because the UK does not have a written constitution.

Here, all forms of discrimination are banned under section 82 of our supreme Law. In any case, the roles of the proposed commission are already in the docket of the Kenya National Commission on Human Rights Act (2002). No, we don't need another costly outfit to duplicate the work of existing commissions.

Owino Opondo is the Nation's Parliamentary Editor.

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