Constitution review and national identity

By Lukoye Atwoli
(edited version published in the Sunday Nation 29 March 2009, Page 20)

The constitutional review debate is back in vogue in this country, with the formation of a ‘panel of experts’ to oversee the process. Many in Kenya hope this will be the final step in a long journey characterized by missteps and political brinkmanship aimed at scuttling the process. This optimism of many Kenyans is commendable, given our long history of wrangling over full-stops and commas in this document that we hold to be the key to everything.
Three weeks prior to the last general elections, I argued in the Daily Nation (06 December 2007) that the problem with this country is a lack of a defining national identity that can be codified into a constitutional order. In that article, I noted that without a consensus on what it means to be Kenyan, we cannot agree even on a national dress, let alone a constitution!
Subsequent events last year proved this contention right as we stared civil war in the face, and indeed some would argue that we actually went to war, and only outside intervention saved the nation from total collapse.
As we embark on a new constitution-making process, Kenyans must this time seize the opportunity to seriously confront this identity crisis and come out knowing themselves better than before. Failure to define ‘Kenyanness’ before embarking on constitutional review will have one of two possible results: One, a document that does not speak to the people’s perspectives, needs and aspirations, or two, a lack of agreement resulting in another merry-go-round to the next general election where the constitution will be on the agenda.
The so-called committee of experts may feel the need to embark on a national tour collecting views from the citizenry as is the tradition with all Kenyan committees and commissions. As it does this, it is hoped that they will not go round asking ‘Wanjiku’ what sort of constitution she wants. She has amply demonstrated several times in the past that she does not know what the fuss is all about as long as she gets food on the table, security and equal opportunity.
On matters to do with constitution-making, Wanjiku demonstrated her singular insularity and propensity to listen to and amplify the opinion of the reigning local warlord. This is not to say that the citizenry should not be involved in constitution-making. On the contrary, making a new constitution without the involvement of the citizens would be catastrophic since there would be no sense of ownership and therefore no obligation to observe the tenets espoused in the document.
The important thing about the involvement of Wananchi is the level of their involvement. The Bomas model was flawed because it sought to use ‘democratic methods’ in arriving at a constitution. Collecting people from various corners of the republic, most ‘elected’ to represent their regional king-pins, and asking them to engage in high-level conversations on a lofty document called ‘constitution’ was really taking a joke too far!
The role of the panel of experts as it engages Kenyans from all walks of life will not be to ask them which clause they want expunged or included in the new constitution. Their role will be to enquire from the citizens what they consider makes one a Kenyan. That is the only question Wanjiku should be asked to answer.
Her views on what makes on a Kenyan will then be collated from all corners of the republic, and with this information, it will be easy for a small group to meet and develop a document that will make this vision of a Kenyan a reality. The panel may then be required to include provisions that harmonise this ‘Kenyan’ with an ideal that is agreed upon by the entire body of citizenry, and meets minimum international standards.
The makers of the United States constitution began by framing their concept of what constitutes an American, and their vision has endured for over two hundred years. The makers of our independence constitution went to Lancaster House in the then colonial power’s backyard to haggle over power and how it should be distributed among themselves and their ‘communities’, and even after agreeing on this, went ahead to mutilate the resultant document ending up with the cross-breed mongrel we now call a constitution.
The legacy our founding fathers left us with is the same one they inherited from the British colonial government, one of ethnicised politics and sabre-rattling leaders who do not hesitate to rouse up tribal militia whenever their own interests are threatened. We now have the opportunity to right the wrongs meted on us by the independence leaders by coming up with a constitution that truly represents who we are and who we want to become.