By LUKOYE ATWOLI
Sunday Nation 20 June 2010
Last Sunday, someone organised an attack on a gathering of Kenyans who had attended a prayer meeting that also served as a campaign rally for those opposed to the proposed constitution. Six people were reported to have died, with dozens others injured and the whole nation left with more questions than answers.
Even as the police go about investigating the motives and intentions of those involved, it is imperative that the whole nation takes a step back and re-examines itself in order to pre-empt this plunge back into the depths of depravity.
As a nation, we have been engaged in a process of constitutional reform for over two decades, and the forthcoming referendum is the culmination of this process. The fact that we are having a referendum is testimony to the fact that there is still no consensus on some issues, and in their wisdom or lack of it, our political class decided that the only way to sort out these issues is through a plebiscite.
Those in the ‘No’ camp who are arguing that the referendum should be put off in order to initiate dialogue in pursuit of further consensus are misguided, and should just focus their campaign on pointing out the flaws in the draft in order to enable its rejection.
There is never going to be consensus on many of the contentious issues, because most Kenyans have such deeply entrenched positions informed by religious, political and ethnic considerations that any attempt to address them will only result in a reversal of the ‘Yes’ and ‘No’ positions.
Many allegations are flying around concerning the possible culpability of those in either camp and, in typical Kenyan fashion, we are losing sight of the fundamental issue -- the loss of lives in a most heartless fashion right in the centre of our capital city. One would think that the nation would be united in condemning this terrorist act and hunting down the perpetrators to the furthest reaches of our Republic, but no, our responses are utterly predictable.
On the day of the attack, church leaders were quoted in the press as accusing the government and the ‘Yes’ campaign of orchestrating the attacks. Many in the ‘Yes’ team hold the opinion, which is expressed in a rather roundabout fashion, that the ‘No’ camp may have organised the attacks in order to attract sympathy. Only proper investigations can unravel the truth about these claims.
However, both these opinions are sickening in their predictability and facile childishness. It is as if the two sides are discussing goals in a football match, and not the loss of citizens’ lives. It is time to put a stop to this nonsense, and call this crime by its true name.
Last Sunday’s grenade attack in the heart of Nairobi was a declaration of war on the Republic of Kenya. The perpetrators are heartless soldiers of fortune who must be hunted down like the animals they are in order to face the sort of justice reserved for war criminals and their ilk.
For Pete’s sake, let us remember that even little children were targeted in this attack! What political opinions do they hold that would drive a maniac to end their lives so callously? Would the politicians’ response be the same had we been attacked by a foreign government or organisation? If this is the case, then we must, indeed, be very afraid.
The government must now shed its usual lethargy and move swiftly to deal conclusively with the perpetrators of this heinous act if it is to forestall similar occurrences in future. Should the government appear to be dilly-dallying and inept in its response, we must hold it squarely responsible, both the Green and Red wings of it.
As we exhort the government to act appropriately in this matter, we must not forget that investigations into similarly treasonable activities are still pending. Those who inserted the words ‘‘National Security’’ into the proposed constitution’s bill of rights are still roaming free in this country, despite a government pledge to ‘‘leave no stone unturned’’.
It seems that the police have been unable to conclude investigations into this matter, and no one has so far been arraigned in court to answer charges related to it. This lethargy is the main reason why Kenyans will take any government pledges of speedy investigations with a healthy dose of salt.
However, even as we mourn our dead and support the injured, calls for the postponement of the referendum must be ignored. We cannot allow some miscreants to disrupt this important national function for, doing so would be declaring surrender to sundry terrorists with a bone to pick with the establishment. The blood of our fellow citizens will have been shed in vain.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine; www.lukoyeatwoli.com
Sunday, June 20, 2010
Monday, June 14, 2010
Apt challenge from Biden at an opportune time
By Lukoye Atwoli
Sunday Nation 13 June 2010
The Vice-President of the United States of America paid us a visit en route to attend the opening ceremony of the Football World Cup in South Africa.
During his visit, Mr Joe Biden made a much-heralded keynote speech at the Kenyatta International Conference Centre, addressing a wide range of issues concerning the place of our country in the international community.
Mr Biden gave Kenyans a feel of the direction the relationship between our two countries is likely to take in the coming years. He stressed the need for reforms in all sectors as a driver for social and economic progress, pointing out that a new constitutional dispensation is likely to unlock investment opportunities in this country.
However, his most telling statement hinged on the calibre of our leaders and the role Kenyans have in changing the situation. Echoing what many of us have been saying for a long time in these columns and elsewhere, the American VP bluntly told Kenyans that “change will not come from the top, but from you”. He stressed the role of citizens in ensuring accountability in all arms of government.
A closer analysis of the implications of Biden’s statement reveals a model of thought that is alien to most Kenyans, including the highly educated ones. Despite the changes the country has gone through since independence, nothing has changed much in the search for a Kenyan messiah who will descend from the heavens with answers to all our problems.
Throughout our history, we have never failed to beseech the Almighty God to send us a saviour to show us the way forward whenever we encounter difficulties. Perhaps the malady started way before independence when the late Jaramogi Oginga Odinga declared that Jomo Kenyatta was the Africans’ ‘‘Second god’’, arguing that “if there is anybody who has done much for the African people, next to what God has done, that man is Jomo Kenyatta”.
This hero-worship was duly constitutionalised when Kenya became an independent Republic in 1964, with a head of state who combined the powers of the Queen of England and the Prime Minister to form an executive monster that has haunted our country ever since.
At every election in the multi-party era, Kenyans have had a myriad of complaints against the incumbent regime, but have always looked up to some saviour to metaphorically slay the dragon on their behalf and lead them to the land of milk and honey.
Unfailingly, these heroes have disappointed in the hour of our greatest need. Although we have been quick to vilify them for failing to meet our expectations, we have failed to recognise the fact that these so-called leaders are but mere mortals, products of their own upbringing and socialisation. Most of them grew up waiting for the same mythical saviour to show them the way, and have no idea what to do whenever they find themselves cast in that role.
This generation of Kenyans is uniquely placed to bust this myth of some preternatural intelligence that is just waiting for the opportune moment to intervene and improve the lot of our people. Biden’s challenge to us is very apt at this point in our history when we are seeking to re-write the basic law of the land.
Instead of looking up to our ‘leaders’ for advice and guidance, we must take the proverbial bull by the horns and make all the decisions ourselves. With a new constitution in hand, we will have the opportunity to define the rules of the game, and hold our representatives to account whenever they flout them.
After the referendum, we must therefore remain vigilant to ensure that our elected and appointed officials conduct their business within the bounds of this document. Our work will only have begun with a ‘‘Yes’’ vote at the referendum and, unlike the picture being painted by the ‘‘Yes’’ campaign, it will be harder work policing this document than passing it.
Although Biden seemed to promise goodies if Kenyans manage to put in place a new constitutional dispensation, we must ignore such promises and instead make decisions about our destiny without expecting rewards from external forces. We must work at creating a better future for our children and future generations.
In the final analysis, we owe it to posterity to do our utmost to develop a society that is more stable, tolerant and prosperous than we found it.
As we approach the final lap in the race for a new constitution, it falls on every Kenyan to consider his or her role in shaping this new future for our country, not because the Americans say so, but because we believe it is good for this and future generations.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine
www.lukoyeatwoli.com
Sunday Nation 13 June 2010
The Vice-President of the United States of America paid us a visit en route to attend the opening ceremony of the Football World Cup in South Africa.
During his visit, Mr Joe Biden made a much-heralded keynote speech at the Kenyatta International Conference Centre, addressing a wide range of issues concerning the place of our country in the international community.
Mr Biden gave Kenyans a feel of the direction the relationship between our two countries is likely to take in the coming years. He stressed the need for reforms in all sectors as a driver for social and economic progress, pointing out that a new constitutional dispensation is likely to unlock investment opportunities in this country.
However, his most telling statement hinged on the calibre of our leaders and the role Kenyans have in changing the situation. Echoing what many of us have been saying for a long time in these columns and elsewhere, the American VP bluntly told Kenyans that “change will not come from the top, but from you”. He stressed the role of citizens in ensuring accountability in all arms of government.
A closer analysis of the implications of Biden’s statement reveals a model of thought that is alien to most Kenyans, including the highly educated ones. Despite the changes the country has gone through since independence, nothing has changed much in the search for a Kenyan messiah who will descend from the heavens with answers to all our problems.
Throughout our history, we have never failed to beseech the Almighty God to send us a saviour to show us the way forward whenever we encounter difficulties. Perhaps the malady started way before independence when the late Jaramogi Oginga Odinga declared that Jomo Kenyatta was the Africans’ ‘‘Second god’’, arguing that “if there is anybody who has done much for the African people, next to what God has done, that man is Jomo Kenyatta”.
This hero-worship was duly constitutionalised when Kenya became an independent Republic in 1964, with a head of state who combined the powers of the Queen of England and the Prime Minister to form an executive monster that has haunted our country ever since.
At every election in the multi-party era, Kenyans have had a myriad of complaints against the incumbent regime, but have always looked up to some saviour to metaphorically slay the dragon on their behalf and lead them to the land of milk and honey.
Unfailingly, these heroes have disappointed in the hour of our greatest need. Although we have been quick to vilify them for failing to meet our expectations, we have failed to recognise the fact that these so-called leaders are but mere mortals, products of their own upbringing and socialisation. Most of them grew up waiting for the same mythical saviour to show them the way, and have no idea what to do whenever they find themselves cast in that role.
This generation of Kenyans is uniquely placed to bust this myth of some preternatural intelligence that is just waiting for the opportune moment to intervene and improve the lot of our people. Biden’s challenge to us is very apt at this point in our history when we are seeking to re-write the basic law of the land.
Instead of looking up to our ‘leaders’ for advice and guidance, we must take the proverbial bull by the horns and make all the decisions ourselves. With a new constitution in hand, we will have the opportunity to define the rules of the game, and hold our representatives to account whenever they flout them.
After the referendum, we must therefore remain vigilant to ensure that our elected and appointed officials conduct their business within the bounds of this document. Our work will only have begun with a ‘‘Yes’’ vote at the referendum and, unlike the picture being painted by the ‘‘Yes’’ campaign, it will be harder work policing this document than passing it.
Although Biden seemed to promise goodies if Kenyans manage to put in place a new constitutional dispensation, we must ignore such promises and instead make decisions about our destiny without expecting rewards from external forces. We must work at creating a better future for our children and future generations.
In the final analysis, we owe it to posterity to do our utmost to develop a society that is more stable, tolerant and prosperous than we found it.
As we approach the final lap in the race for a new constitution, it falls on every Kenyan to consider his or her role in shaping this new future for our country, not because the Americans say so, but because we believe it is good for this and future generations.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine
www.lukoyeatwoli.com
Sunday, June 6, 2010
Temper gay-bashing with facts, and tolerance
By LUKOYE ATWOLI
Sunday Nation 06 June 2010
A few days ago, an editor at the Nation, decided to bare her soul and express her revulsion at having to work on a story about homosexuals in Nairobi.
Dorothy Kweyu’s commentary was titled ‘‘Homosexuality an abomination in the sight of God and man’’ and, at some point in the write-up, she stated: ‘‘It occurred to me that, as a mother and a Christian, I would be failing in my responsibilities, albeit as a lay person, if I did not express the utter horror and revulsion that was mine at reading such brazen affirmation of an evil.’’
While it is in order for one to hold personal views about a subject as personal as homosexuality, it goes beyond the bounds of decency to hit out at individuals who are just going about their lives without posing a threat to anyone else.
Despite the author’s denigration of the so-called ‘‘tolerance ethos’’, it cannot be overstated that without tolerance for those we do not understand or even like, society, as we know it, would have a very ugly face.
Dismissing homosexuality as an ‘‘evil’’ raises questions such as who is harmed by the practice of homosexual relationships, and how this ‘‘evil’’ may be attacked and eliminated from our midst.
Sadly, both questions are often met with irrational circumlocutions often involving the use of mental health specialists to deal with an issue that has nothing to do with mental illness.
As we teach in most medical fields, anything that does not cause distress to the individual or significant social or occupational dysfunction is not the business of a health professional.
As long as an individual’s ‘‘condition’’ poses no risk to himself or to others, doctors have no business roping them in and forcing them to undergo ‘‘treatment’’ whose outcomes cannot be clearly measured.
This is in fact the reasoning that led to the removal in 1973 of ‘‘homosexuality’’ from the manual of mental disorders published by the American Psychiatric Association.
A seminal paper produced to examine the subject concluded that “for a mental or psychiatric condition to be considered a psychiatric disorder, it must either regularly cause subjective distress, or regularly be associated with some generalised impairment in social effectiveness or functioning”.
Homosexuality per se does not even approach this standard set three decades ago and is, therefore, classified as one form of normal sexuality among humans.
There are three different ways in which homosexuality is expressed — as a form of overt behaviour, as sexual orientation or preference, and as a form of personal or social identity.
Almost all commentators who express their revulsion towards homosexuals and homosexuality focus solely on the sexual behaviour.
They spend a lot of time imagining what happens between two homosexuals (usually men) and the sort of effects this may have on the participants, and then form an opinion based on their emotional reaction to this scenario.
In doing this, they forget that there are many female homosexuals (also known as lesbians) who enjoy sexual relationships with other women.
In scientific terms, normal sexuality is described as sexual behaviour that is devoid of inappropriate feelings of guilt or anxiety and is not compulsive.
For these conditions to be met, it follows therefore that sexual contact between two individuals must be consensual and non-coercive in order to be considered normal.
It is, therefore, unfair for writers such as Kweyu to compare some forms of normal sexual activity to ‘‘petty thieves and ... pickpockets’’. It is even worse to put homosexuals in the same category as paedophiles, rapists and murderers as others have done in the past.
The difference between homosexuals engaging in normal sexuality and the paedophiles, rapists and murderers hinges on the concepts of consent and free choice.
Sexual activity between two consenting adults in the privacy of their homes should not exercise the minds of so many in a society that claims to be as progressive and peace-loving as ours.
Whether the sex is heterosexual, bisexual or homosexual, the absence of consent and the presence of coercion are among the hallmarks of abnormal sexuality, and are often criminalised in modern societies.
Finally, Kweyu’s bold statement that homosexuality is “one of the main drivers of HIV and Aids — because anal sex poses the greatest risk of acquiring the deadly virus” — must not be left to go unchallenged.
In Kenya, as in most African countries, the greatest driver for HIV/Aids has always been unprotected heterosexual intercourse.
Clearly, then, those of us who are firmly heterosexual pose the greatest risk to the existence of the human race!
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine.
www.lukoyeatwoli.com
Sunday Nation 06 June 2010
A few days ago, an editor at the Nation, decided to bare her soul and express her revulsion at having to work on a story about homosexuals in Nairobi.
Dorothy Kweyu’s commentary was titled ‘‘Homosexuality an abomination in the sight of God and man’’ and, at some point in the write-up, she stated: ‘‘It occurred to me that, as a mother and a Christian, I would be failing in my responsibilities, albeit as a lay person, if I did not express the utter horror and revulsion that was mine at reading such brazen affirmation of an evil.’’
While it is in order for one to hold personal views about a subject as personal as homosexuality, it goes beyond the bounds of decency to hit out at individuals who are just going about their lives without posing a threat to anyone else.
Despite the author’s denigration of the so-called ‘‘tolerance ethos’’, it cannot be overstated that without tolerance for those we do not understand or even like, society, as we know it, would have a very ugly face.
Dismissing homosexuality as an ‘‘evil’’ raises questions such as who is harmed by the practice of homosexual relationships, and how this ‘‘evil’’ may be attacked and eliminated from our midst.
Sadly, both questions are often met with irrational circumlocutions often involving the use of mental health specialists to deal with an issue that has nothing to do with mental illness.
As we teach in most medical fields, anything that does not cause distress to the individual or significant social or occupational dysfunction is not the business of a health professional.
As long as an individual’s ‘‘condition’’ poses no risk to himself or to others, doctors have no business roping them in and forcing them to undergo ‘‘treatment’’ whose outcomes cannot be clearly measured.
This is in fact the reasoning that led to the removal in 1973 of ‘‘homosexuality’’ from the manual of mental disorders published by the American Psychiatric Association.
A seminal paper produced to examine the subject concluded that “for a mental or psychiatric condition to be considered a psychiatric disorder, it must either regularly cause subjective distress, or regularly be associated with some generalised impairment in social effectiveness or functioning”.
Homosexuality per se does not even approach this standard set three decades ago and is, therefore, classified as one form of normal sexuality among humans.
There are three different ways in which homosexuality is expressed — as a form of overt behaviour, as sexual orientation or preference, and as a form of personal or social identity.
Almost all commentators who express their revulsion towards homosexuals and homosexuality focus solely on the sexual behaviour.
They spend a lot of time imagining what happens between two homosexuals (usually men) and the sort of effects this may have on the participants, and then form an opinion based on their emotional reaction to this scenario.
In doing this, they forget that there are many female homosexuals (also known as lesbians) who enjoy sexual relationships with other women.
In scientific terms, normal sexuality is described as sexual behaviour that is devoid of inappropriate feelings of guilt or anxiety and is not compulsive.
For these conditions to be met, it follows therefore that sexual contact between two individuals must be consensual and non-coercive in order to be considered normal.
It is, therefore, unfair for writers such as Kweyu to compare some forms of normal sexual activity to ‘‘petty thieves and ... pickpockets’’. It is even worse to put homosexuals in the same category as paedophiles, rapists and murderers as others have done in the past.
The difference between homosexuals engaging in normal sexuality and the paedophiles, rapists and murderers hinges on the concepts of consent and free choice.
Sexual activity between two consenting adults in the privacy of their homes should not exercise the minds of so many in a society that claims to be as progressive and peace-loving as ours.
Whether the sex is heterosexual, bisexual or homosexual, the absence of consent and the presence of coercion are among the hallmarks of abnormal sexuality, and are often criminalised in modern societies.
Finally, Kweyu’s bold statement that homosexuality is “one of the main drivers of HIV and Aids — because anal sex poses the greatest risk of acquiring the deadly virus” — must not be left to go unchallenged.
In Kenya, as in most African countries, the greatest driver for HIV/Aids has always been unprotected heterosexual intercourse.
Clearly, then, those of us who are firmly heterosexual pose the greatest risk to the existence of the human race!
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine.
www.lukoyeatwoli.com
Sunday, May 30, 2010
Ruling on Kadhis’ courts was a judicial coup attempt
By LUKOYE ATWOLI
Sunday Nation 30 May 2010
The constitutional court ruling on Monday last week concerning the place of Kadhis’ courts in the constitution and in our national life was, of course, meant to be controversial. The timing of the ruling also raised eyebrows.
Many arguments will be made on the merits or otherwise of the ruling, including its effect on the constitutional review process, and this is likely to keep legal academics talking for a long time to come.
In my opinion, however, this ruling will be remembered in future for an entirely different reason.
It will be remembered for attempting to turn a courtroom into a classroom at the School of Law, and trying to overthrow the established constitutional order through judicial fiat.
With a stroke of their collective pen, the constitutional court judges threw to the four winds the doctrine of judicial restraint favouring, instead, a more active engagement in re-writing the constitution of the Republic – a judicial coup attempt.
Legal issues
Quite apart from the weighty legal issues the ruling raises, it contains numerous other obvious errors including the citation of parts of the constitution that have absolutely nothing to do with the ruling the judges handed down.
These are merely indicative of the decline in the culture of exactitude that we inherited from the British colonialists, and a descent into an attitude of “anything goes”.
For instance, the judges aver that paying for the Kadhis’ courts from public coffers is “... also against the principle of separation of state and religion as captioned by section 1A of the Constitution”.
The cited section in fact only says that “The Republic of Kenya shall be a multiparty democratic state.”
The leap from “multiparty democratic state” to one that actively eliminates minority rights is a huge one, indeed, and one hopes that their long 114 page ruling (as cited in the press) contains the legal philosophy and theory that enables that chasm to be safely navigated.
The main foundation of the judges’ findings was that section 66 of the constitution (which allows for the creation of Kadhis’ courts and the necessary infrastructure) is inconsistent with section 65 (which gives Parliament the power to establish courts subordinate to the High Court) and section 82 (which outlaws discrimination in law-making).
An ordinary citizen may quite truthfully plead that ignorance of the law blinds them from seeing the inconsistency between sections 66 and section 65, but we must wait upon the lawyers to educate us on the extent of this conflict.
However, regarding section 82, subsection 4(b) explicitly makes exemptions for laws that make provisions “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”, which is exactly what both section 66 of the constitution and the Kadhis’ Courts Act set out to do.
Indeed, section 82(1) of the constitution explicitly recognises this fact by providing in the beginning that “subject to subsections (4), (5) and (8) ...”.
For the learned judges to find inconsistency between this section and section 66 begs a deeper explanation than can be found in a plain reading of the ruling and the constitution itself.
Further, in granting the clergymen’s prayer to declare section 66 to be, among other things, “unconstitutional”, the judges clearly pushed jurisprudence to another level.
In theory, the people in a constitutional democracy exercise their sovereignty through the constitution.
They elevate it into a canopy underneath which all organs of state must function, and any act or provision that is perceived to run afoul of the constitution is considered null and void, and ultimately unconstitutional.
In this regard, therefore, the courts are custodians and the primary defenders of the constitution, with the power to interpret the will of the people as expressed in this document.
A coup
Nobody has the power to change the constitution except through mechanisms prescribed in the same document which, in our case, is encapsulated in sections 47 and 47A of the constitution.
Any other attempts to instigate alteration or replacement of the constitution would be regarded as a coup against the constitutionally established order, and most jurisdictions would deal with it as a treasonable offence.
If this decision is allowed to stand, it will deal a deadly blow to the last bastion of our nationhood, belief in the infallibility of the constitution.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Sunday Nation 30 May 2010
The constitutional court ruling on Monday last week concerning the place of Kadhis’ courts in the constitution and in our national life was, of course, meant to be controversial. The timing of the ruling also raised eyebrows.
Many arguments will be made on the merits or otherwise of the ruling, including its effect on the constitutional review process, and this is likely to keep legal academics talking for a long time to come.
In my opinion, however, this ruling will be remembered in future for an entirely different reason.
It will be remembered for attempting to turn a courtroom into a classroom at the School of Law, and trying to overthrow the established constitutional order through judicial fiat.
With a stroke of their collective pen, the constitutional court judges threw to the four winds the doctrine of judicial restraint favouring, instead, a more active engagement in re-writing the constitution of the Republic – a judicial coup attempt.
Legal issues
Quite apart from the weighty legal issues the ruling raises, it contains numerous other obvious errors including the citation of parts of the constitution that have absolutely nothing to do with the ruling the judges handed down.
These are merely indicative of the decline in the culture of exactitude that we inherited from the British colonialists, and a descent into an attitude of “anything goes”.
For instance, the judges aver that paying for the Kadhis’ courts from public coffers is “... also against the principle of separation of state and religion as captioned by section 1A of the Constitution”.
The cited section in fact only says that “The Republic of Kenya shall be a multiparty democratic state.”
The leap from “multiparty democratic state” to one that actively eliminates minority rights is a huge one, indeed, and one hopes that their long 114 page ruling (as cited in the press) contains the legal philosophy and theory that enables that chasm to be safely navigated.
The main foundation of the judges’ findings was that section 66 of the constitution (which allows for the creation of Kadhis’ courts and the necessary infrastructure) is inconsistent with section 65 (which gives Parliament the power to establish courts subordinate to the High Court) and section 82 (which outlaws discrimination in law-making).
An ordinary citizen may quite truthfully plead that ignorance of the law blinds them from seeing the inconsistency between sections 66 and section 65, but we must wait upon the lawyers to educate us on the extent of this conflict.
However, regarding section 82, subsection 4(b) explicitly makes exemptions for laws that make provisions “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”, which is exactly what both section 66 of the constitution and the Kadhis’ Courts Act set out to do.
Indeed, section 82(1) of the constitution explicitly recognises this fact by providing in the beginning that “subject to subsections (4), (5) and (8) ...”.
For the learned judges to find inconsistency between this section and section 66 begs a deeper explanation than can be found in a plain reading of the ruling and the constitution itself.
Further, in granting the clergymen’s prayer to declare section 66 to be, among other things, “unconstitutional”, the judges clearly pushed jurisprudence to another level.
In theory, the people in a constitutional democracy exercise their sovereignty through the constitution.
They elevate it into a canopy underneath which all organs of state must function, and any act or provision that is perceived to run afoul of the constitution is considered null and void, and ultimately unconstitutional.
In this regard, therefore, the courts are custodians and the primary defenders of the constitution, with the power to interpret the will of the people as expressed in this document.
A coup
Nobody has the power to change the constitution except through mechanisms prescribed in the same document which, in our case, is encapsulated in sections 47 and 47A of the constitution.
Any other attempts to instigate alteration or replacement of the constitution would be regarded as a coup against the constitutionally established order, and most jurisdictions would deal with it as a treasonable offence.
If this decision is allowed to stand, it will deal a deadly blow to the last bastion of our nationhood, belief in the infallibility of the constitution.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Sunday, May 23, 2010
Blatant disregard for the law does not auger well
By LUKOYE ATWOLI
Sunday Nation 23 May 2010
Even as the Independent Interim Electoral Commission was announcing that the official campaign period for the referendum would begin on July 13 and end on August 2, the opposing Yes and No camps had already embarked on the campaign trail.
In the past two weeks, they have held large campaign rallies at Uhuru Park to campaign for their point of view, and numerous more rallies have been held across the country for the same purpose.
Despite the fact that most people had not had enough time to read and internalise the provisions of the proposed draft constitution, the protagonists immediately went for each other’s jugular.
The No camp embarked on media campaigns and rallies, and clergymen have been using the pulpit to drive their point home.
The Yes group, on the other hand, has been traversing the entire country at times in the guise of civic education, and at other times openly campaigning for the document.
The sum of it all is that as far as the referendum and the quest for a new constitution is concerned, there is a total breakdown of civility in the land. Politicians, clergymen and civil society activists are all engaged in activities that challenge the boundaries of legality in broad daylight.
The tragedy is that both groups believe they are doing Kenyans a favour by crisscrossing the country canvassing for their positions on the proposed draft constitution.
In reality, these so-called “leaders” are doing the institutions of this country irreparable damage, and neither the current constitution nor the proposed one can save us from this amount of impunity.
By ignoring pleas from statutory bodies like the IIEC and the Committee of Experts, all those concerned are passing the message that nothing matters in their quest to have their way.
The irony is that both groups profess that their way will result in a safer, more prosperous country where the rule of law will reign supreme.
The message going out to the ordinary citizen is that legal strictures are meaningless unless they are sponsored or supported by their favourite bigwig, in which case they become sacrosanct and inviolate.
Indeed one will invariably hear the protagonists selectively quote legal provisions their opponents have violated, forgetting to attend to the logs in their own eyes first.
As far as the content of the campaigns is concerned, both sides are guilty of distortions of various provisions in the proposed draft. The Yes camp has magnified the sections they consider good, embellishing them beyond recognition.
They have painted the post-referendum period as one in which Kenya will be comparable to the Garden of Eden, and nobody will need to work since the state will spread its largesse to all corners of the land.
This distortion needs to be corrected and tempered with the necessary injunction that, even after the referendum, nothing will change unless all Kenyans re-dedicate themselves to the task of making sure that they create a better future for posterity.
As for the various No camps, multiple distortions are being peddled to serve their peculiar interests. The clergy are running around claiming that the draft promises “practically unlimited abortions on demand” and entrenches “Sharia Law” in the constitution.
Others in the No group are claiming that should the draft pass, people living on small pieces of land will lose them in the interest of setting a “minimum acreage of private land”.
Extreme examples of distortion include assertions that the draft allows the security forces to go on strike, picket and riot like ordinary citizens, setting the ground for a possible mutiny and even coup.
The drafters of the referendum law must have had just this scenario in mind when they set aside time for civic education. They must have known that no matter how good the draft ended being, there would still be people opposed to it.
These individuals would conceivably do everything in their power, including peddling falsehoods and distortions, to see it fail at the referendum.
In their wisdom, they must have set aside time for education of the masses to counter propaganda from both sides of the divide and ensure that the draft passes or fails solely on its own merit.
This noble objective is now unlikely to be met with any degree of success due to the ongoing disinformation campaigns compounded by delays in the release of the funds necessary for the programme.
This being the case, it is pointless for the IIEC to allow so much time for a fruitless exercise, and even more time for further campaigns when we all know that the product will only be lies, lies and more lies.
An accelerated referendum schedule would have served Kenyans better than the current spectacle of unending campaigns.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Sunday Nation 23 May 2010
Even as the Independent Interim Electoral Commission was announcing that the official campaign period for the referendum would begin on July 13 and end on August 2, the opposing Yes and No camps had already embarked on the campaign trail.
In the past two weeks, they have held large campaign rallies at Uhuru Park to campaign for their point of view, and numerous more rallies have been held across the country for the same purpose.
Despite the fact that most people had not had enough time to read and internalise the provisions of the proposed draft constitution, the protagonists immediately went for each other’s jugular.
The No camp embarked on media campaigns and rallies, and clergymen have been using the pulpit to drive their point home.
The Yes group, on the other hand, has been traversing the entire country at times in the guise of civic education, and at other times openly campaigning for the document.
The sum of it all is that as far as the referendum and the quest for a new constitution is concerned, there is a total breakdown of civility in the land. Politicians, clergymen and civil society activists are all engaged in activities that challenge the boundaries of legality in broad daylight.
The tragedy is that both groups believe they are doing Kenyans a favour by crisscrossing the country canvassing for their positions on the proposed draft constitution.
In reality, these so-called “leaders” are doing the institutions of this country irreparable damage, and neither the current constitution nor the proposed one can save us from this amount of impunity.
By ignoring pleas from statutory bodies like the IIEC and the Committee of Experts, all those concerned are passing the message that nothing matters in their quest to have their way.
The irony is that both groups profess that their way will result in a safer, more prosperous country where the rule of law will reign supreme.
The message going out to the ordinary citizen is that legal strictures are meaningless unless they are sponsored or supported by their favourite bigwig, in which case they become sacrosanct and inviolate.
Indeed one will invariably hear the protagonists selectively quote legal provisions their opponents have violated, forgetting to attend to the logs in their own eyes first.
As far as the content of the campaigns is concerned, both sides are guilty of distortions of various provisions in the proposed draft. The Yes camp has magnified the sections they consider good, embellishing them beyond recognition.
They have painted the post-referendum period as one in which Kenya will be comparable to the Garden of Eden, and nobody will need to work since the state will spread its largesse to all corners of the land.
This distortion needs to be corrected and tempered with the necessary injunction that, even after the referendum, nothing will change unless all Kenyans re-dedicate themselves to the task of making sure that they create a better future for posterity.
As for the various No camps, multiple distortions are being peddled to serve their peculiar interests. The clergy are running around claiming that the draft promises “practically unlimited abortions on demand” and entrenches “Sharia Law” in the constitution.
Others in the No group are claiming that should the draft pass, people living on small pieces of land will lose them in the interest of setting a “minimum acreage of private land”.
Extreme examples of distortion include assertions that the draft allows the security forces to go on strike, picket and riot like ordinary citizens, setting the ground for a possible mutiny and even coup.
The drafters of the referendum law must have had just this scenario in mind when they set aside time for civic education. They must have known that no matter how good the draft ended being, there would still be people opposed to it.
These individuals would conceivably do everything in their power, including peddling falsehoods and distortions, to see it fail at the referendum.
In their wisdom, they must have set aside time for education of the masses to counter propaganda from both sides of the divide and ensure that the draft passes or fails solely on its own merit.
This noble objective is now unlikely to be met with any degree of success due to the ongoing disinformation campaigns compounded by delays in the release of the funds necessary for the programme.
This being the case, it is pointless for the IIEC to allow so much time for a fruitless exercise, and even more time for further campaigns when we all know that the product will only be lies, lies and more lies.
An accelerated referendum schedule would have served Kenyans better than the current spectacle of unending campaigns.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
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