Friday, November 27, 2009

Weaknesses could pose threat to enactment of new law

Sunday Nation 22 November 2009

With suitable pomp and pageantry, the harmonised draft constitution of Kenya was finally unveiled in Nairobi on Tuesday. Kenyans have been given 30 days to peruse and debate the draft, and suggest to the Committee of Experts any areas they feel need to be changed or addressed to their satisfaction.

No matter what the pundits, bigots, naysayers and other busybodies say, this country is unlikely to come up with any better draft constitution than the harmonised draft this committee has come up with.

This must not be misconstrued to mean that this is the best possible draft that could be produced in this country. On the contrary, it is not far-fetched to suggest that this draft is singularly unimaginative when it comes to re-engineering the architecture of the state.

For instance, regarding devolution, the draft chose to stick to the current “regions”, succumbing to the ethno-political demagoguery that decreed that some provinces would only be split at the expense of spilt blood despite being large and unwieldy.

The proposed counties also bear an uncanny resemblance to the “Moi” districts, some still carrying the stigmata of failed nomenclature, for instance “Butere/Mumias”!

In the interests of honest debate and consideration of issues, it is wise for us to acknowledge some weaknesses in the Kenyan psyche that will pose a serious threat to the enactment of a new constitution.

One, no matter what is contained in the draft constitution, the majority of Kenyans will not read it, and will rely on their ethno-political warlords to read and interpret it for them.

Despite having the draft in all possible forms short of recruiting personal tutors for each and every citizen and their dog, nobody is going to give it any level of sustained attention.

This was true with the last referendum and it will continue to be true with the current constitutional review process, unless something very fundamental shifts in the Kenyan psyche.

Two, those that attempt to read the document will latch onto one or two issues and be blinded to the rest of the constitution. The religious right will definitely continue beating war drums on such marginal issues as the place of religious courts in the constitution as well as sexual orientation.

Politicians will try to interpret the document in light of the current transitional arrangement, and the positions in the document will be replaced with individual names to see how they fit.

Three, current affairs will continue to taint the view of the draft constitution. Contemporary red herrings such as the Mau forest stand-off, 2012 General Election realignments and post-election violence resentments will heavily taint the interpretation of various provisions in the harmonised draft.

Finally, it would be wise to indicate that no constitution, new or old, is going to save Kenyans from themselves. The success or failure of a new constitutional dispensation will depend on the entrenchment of a new culture of constitutionalism. A system that guarantees a healthy respect of the rule of law is more important than the letter of the law itself.

The biggest failure of the Kenyan state since independence has been the blatant disregard for the law by those that are meant to enforce it, and the phenomenon of “impunity” is firmly anchored in this historical foundation.

At the end of the day, it should be reasonable to agree that as long as the constitution is written by well-meaning citizens with the good of the nation at heart, it does not matter what system of government it proposes or how many levels of devolution it provides for. As long as Kenyans are willing to respect the document and the resultant laws, the constitution will be good enough for the majority.

There is therefore no point wasting a lot of resources subjecting the harmonised draft to scrutiny by the average Joe, who will not bother to read it anyway. It further defeats logic to subject the final draft to a referendum, given that a majority of the voters will be voting for or against a document they will not have read.

Unless the above-listed difficulties are surmounted one way or another, there would remain only one practical solution to this conundrum. The president (or the government) should simply declare a state of emergency, abrogate the current constitution and replace it with the harmonised draft which contains adequate transitional mechanisms as it is. Undesirable sections and provisions will be easily amended later as provided for in the draft.

Any other route to a new constitution stands the risk of being hijacked by entrenched interests.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine.

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