Kenya Constitution: Let’s Not Forget Why We Needed New Constitution

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Raila Odinga: Prime Minister of Kenya

Some of us seem to have forgotten what the purpose of making a new constitution is. When they think their needs are satisfied, they have started calling everyone else who hasn’t got what they wanted ‘retrogressive, corrupt or land grabber.’ And it’s shocking to see that among those who are name-calling are Prime Minister Raila Odinga and his troop, who, in the last referendum, led a walk-out on the government of President Mwai Kibaki when his needs were not satisfied.

PART ONE

The purpose of reviewing the constitution is to create political and moral legitimacy of the government. Full stop. By the 1990s, the KANU government had lost legitimacy and that is why there was the clamor to review the constitution. Economic stagnation, widespread unemployment, corruption and poor performance of the public sector under the KANU regime deepened people’s suspicions and disenchantment.

In such a situation, political leaders could not extract support and legitimacy needed to exercise power. To give the government political and moral legitimacy, a new frame work was needed. And that frame work is contained in the constitution.

What is a constitution and what should it accomplish?

What is a constitution and what should it accomplish? We must be clear about that simple question. A constitution is, by definition, the laws and principles by which a state is governed. It is ideally the result of an agreement among a state’s citizens about how they will be governed. And how they will be governed essentially concerns rights and obligations. It concerns individual rights and freedoms.
What are the maximum individual rights and freedoms that the citizens are willing to give up in order to coexist as people within a nation-state? That’s a fundamental question. It is actually the answer to this fundamental question that brings about the issue of negotiation. Every individual wants to give up as little as they can –it is human nature—while they want the others to give up as much as they can. The Muslims want their culture preserved. The Christians want the Muslims to give up that, and more, of their rights and freedoms. And the silent 100 per cent of Kenyans want to keep their cultures, customs and traditions. The land issue is one of the ways of expressing this.

Democracy

Generally speaking, the balance of the rights and freedoms that the citizens retain define the degree of what is commonly called democracy. Undemocratic and dictatorial governments usurp all the rights and freedoms of their citizens or groups of their citizens.
Concern with democracy makes a constitution a political document with a moral foundation. The building blocks are concepts of justice and equality which are essentially cultural formulations.

Some History

In emerging nations-states such as are in Africa, these concepts do not just apply to individual but also to cultural groups– the actual social building blocks of modern states. But cultures are full of prejudices, misconception and egotism. The challenge therefore becomes: How do we deal with other cultures? Do we subjugate, deny, reject or negate the differences as we are doing in Kenya?
Do we hold ourselves—and our cultures- up as a standard against which all is to be judged, as the proponents of draft constitution are doing? Do we continue pretending to be guided by the principle of common good while secretly considering opinions—the rights and freedoms- of others as abhorrent, a deviation from our pattern of normalcy, a betrayal of “statehood”? Or do we seek dialogue with those, who, by their very difference, may complement and complete us? Do we seek to establish harmony in diversity?
The cultural dimension
In essence, we are talking about culture. We are talking about the right for everyone of us to affirm our different understanding of our history, of society, of self. We want the right to live according to our cultural traditions and beliefs as witness the issue of the Kadhi Courts and land clashes.
We want the right to maintain our distinct culture, the right to those conditions which enable us to affirm the full dimension of our existence. For that dimension is, in the words of UNESCO, “ is the fundamental equation that determines how we relate to our community and the world at large”
Africa today continues to be plagued by large scale and localized violence because of egotism, bigotry and intolerance to difference. At the moment, thousands of Kenyans walk and sleep as refugees in their country and abroad, forced from their homes by fears of persecution following the 2007 post election clashes. We know many people died. And the sad thing is that we know the clashes were caused by cultural bigotry, the same thing we are hell bent to repeat.

Oppression and dictatorships start with the denial of the humanity of other human beings. Because, in the eyes of the dictator other human beings are less human, they can be detained, maimed or even killed at the will of the dictator. Humanity of a human being is expressed in their fundamental freedoms—their cultural freedoms. That is why, throughout history, the demand for national independence has gone hand in hand with cultural revival.

Don’t miss PART TWO of this essay next Tuesday. Your comments are welcome

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