Constitutional Illusions….
I don’t like to get into nuanced legal discussions because they usually end up sending me (& others) off to a corner called “snore”. However, I am compelled to write this post after seeing how excited people have become about *shudder* yet another “draft constitution”.
I don’t know why Africans (& in this case Kenyans) believe that a constitution will deliver them to the promised land of hope, change and democracy. Since when have Africans been compelled to change based on something written down on a piece of paper? Kenya has had a constitution since independence, but it was just ignored — first by Kenyatta, then by Moi, now by Kibaki and chances are, by whoever will become Kenya’s fourth president.
African culture is oral. The written word is not what moves us. We are moved by the spoken word. In fact, the spoken word is so powerful to us, that when a group of elders delivers a message that instructs us to hack our neighbors to death (with machetes) — we do it without question and with ruthless efficiency. That’s how we end up with what we saw in Rwanda during the genocide or (to bring it closer to home) with what we saw in Kenya in 2007.
So, this constitutional document is interesting to me, not because of all the legalisms contained within it, but rather (because) I am looking at it and realizing that, it is a document which, at it’s core, is antithetical to our culture.
Perhaps this is the fundamental problem with much of Africa: We keep trying to find solutions to our problems that don’t fit into our intrinsic culture.
A constitution will never stop an African leader from doing the wrong things, even if it’s written in blood. In fact, a better mechanism to ensure proper governance would be to insist that a president’s decisions must first be sanctioned by a tribal council of elders (because of the communalism and oral culture of Africa, this tribal council, using the spoken word to admonish, would carry more weight than anything written down on paper).
Your thoughts…….
could’nt agree more.
Hey KE,
I’m an avid reader of your blog, good job! I agree to disagree with you on this one. Kenyans desperately need a new constitution written and driven by Kenyans. The days when word of mouth was alpha and omega are gone. It is true that all Kenyan presidents past and present used word of mouth and muscles (because they lack brains), and chances are the 4th or even 5th presidents will do the same. But think about future generations, say the 10th president…you think hes going to run the country like its his farm?? don’t think so. This might not be the perfect constitution but its definitely a sign of better days ahead. The independence generation/mindset is heading out, and will be replaced by Kenyans who will put country over personal interests. I see a better Kenya ahead…God bless Kenya!
KE,
Read the harmonized Draft. Read the harmonized Draft……. Read the harmonized Draft before you start dishing comments on what you know not. Don’t just argue for the sake of arguing tell us your alternative and what solutions u have for what you issues you addressing.
El esbozo es Excelente…. Muy Bueno…. Exactamente lo que el país necesita !!
I agree with Prezzo#10 with this draft as Kenya’s constitutions a better future lies ahead. But prezzo what i don’t agree with is the need for the draft to go through parliament. I don’t trust those hyenas. Don’t get me Wrong- I always call Kenyan politicians hyenas. Because their character reminds me of that. But anyway I hope it goes through without any changes as it is now.
Yo Prezzo, what do you think of the Boundaries issue ? Do you think the COE needs to incorporate the boundaries report in the draft au tuendelee with what boundaries we have had ??
Didier:
I am almost 99% sure that outside of legal academia, no lawyer or law student would waste their time reading that draft constitution. So, I am going to guess here that either you are a legal academic (who loves theoretical discussions about constitutional law) or that you are not a lawyer & therefore, have never really had to delve into trying to decipher legal mishmash.
Prezzo:
I am coming to the conclusion that Kenyans may be looking at this draft constitution as if it’s some sort of miracle pill. A one-stop answer that will resolve all their problems. Forgetting of course, that the country is still ruled by men who are filled with all the human compunctions of greed, madness and violence.
I think that they are some societies that are so morally corrupted & that are lead by such immoral people, that no level of written words can transform them out of this malaise.
The only thing that can transform societies such as these, is for them to crash and burn and literally realize (from that experience) that they never want to return to that abyss and therefore, they genuinely work on reconstructing their countries from scratch.
Rwanda is a good example of this. That society was so morally corrupted that it had to crash and burn before they could start afresh. i.e. before they could rebuild a society based on a sense of morality and justice.
So, when I look at Kenya’s present rulers, I see people who are so morally corrupted, that eventually, they will lead the country to crash and burn and then and only then, will having a new constitution make a difference.
KE:
AVe been following your blog for a while now and I think you are a great thinker,but the question ave been asking myself is whether your great thinking is of any importance apart from its relevance.
Whn u allege that a written constitution aint gonna make any difference to governance in Kenya,unlike oral word,I wish u could explain the difference btwn oral and written.My feelings tell me that what u write and what u speak are sourced from the same source i.e.the mind.When what is written is read loudly it becomes oral.
Its clear that ua thoughts on constitution are only geared and narrowed towards politics,but there are other areas of governance which require written rules/agreement for reference.
A constitution is an accord/agreement on how people want to govern themselves,you know for ease of reference and sense, this agreement should be written down.That is why kenyans are been asked to read the dummy constitutional draft so that they can create rules for themselves by writing them down.
The council of elders make decisions as per some form of agreement amongst themselves or the community they head,they have a constitution which is not written.
Been too simplistic in ua great thinking maybe a sin.Rather than saying Kenyans will not read the dummy,you should be advocating for Kenyans who don’t read anything to draw interest and participate in creating their own rules of governance.From there, they should take charge to ensure nobody goes against this agreement whether the president or whoever.Americans have done so,why not Kenyans?.
Inform Kenyans to change their attitude towards politicians and stop seeing them as demigods and I think the first step is to understand the essense of a constitution.
You are the type which sits back and waits for other people to initiate something so that you can get material to blog on,Just like Kenyan media……………KE start initiating ideas rather than only reacting.
For once i agree with KE. We need a consensual based system of modus operandi that is predicated on shared values with our African Brothers.
However a written document not just on paper I.E. digitally is the definite sign that Africans have come of age after all It is the Eqyptians our dark skinned ancestors who invented paper.
Once brilliant clause we can include in the constitution is giving every person of African Heritage who is a citizen of a country outside Africa the option of dual citizenship in Kenya.
This wi be revolutionary as it would be advantageous on so many levels namely.
1. Diffuse ethnic tensions as it allow Africans in the Diaspora into our political mix and stop this Kikuyu vs Luo small thinking NONSEMSE.
2. Increase our G.D.P dramatically in a very short time possible in the following ways.
a) A majority of the migrants to Kenya would come with skills, capital and a zeal to make Africa i.e. Kenya a better place.
b) Put the spotlight on Kenya as a home for those of African heritage and increase tourism
c) Create a huge demand for infrastructure, roads housing e.t.c More people, more housing e.t.c
3. Countries with such naturalization policies have led the way in develop e.g. U.S.A, Britain, Australia, Canada, Singapore, Malaysia
4. This would undoubtedly start off the African renaissance which is already part of the national values stipulated in the constitution.
WHAT DO WE HAVE TO LOOSE LETS BE ORIGINAL???
John:
What you have written is simply a fantasy that will not happen in our lifetime. Just forget about all these esoteric constitutional clauses.
Politics is about power and the people in power today are not going to share it with anyone and absolutely not with Raila.
I’m becoming amazed at how people are analyzing these legal issues. It’s stunning to me. You’re behaving like a bunch of law school professors: Falling in love with the theory and totally disconnecting it from the practical realities on the ground.
massaka,
Are saying KE is a great thinker. Oh please. This guy is far from being a great thinker am surprised he didn’t come out and refute that by himself. It goes to show how light headed this guy can be. If I was to characterize KE it would be totally the opposite a small thinker.
John Karanja,
I think I told you in a post before studying Sociology will thrust you in to a fantasy world that is very far from reality. This is exactly what i’ve been saying all along… now look at your comments.
These are very careless immigration proposals- name one country that put such a clause in their constitution. KE et al -i think this CAVE DWELLER here would have a better chance knitting baskets or sitting next to mound chewing termites for breakfast.
The new constitution replaces an executive (read imperial) president with an even more imperial prime minister who can appoint non-elected people like Kamelesh Pattni to cabinet. I hoped the constitution would give appointment power to parliament. Instead of one corrupt man, let’s try 222 (some corrupt). That is what Imanyara Bill is trying to do with the Special Tribunal Judges. It works.
Anonymous,
Could you tell us how it has done that ? ….. I don’t think your argument has any warrant unless you can prove what you saying ?
The draft says very clearly the PM is answerable to the parliament. The motive of having a PM chosen by Mp’s is to avoid a winner takes it all Scenario. This only means that just because a community has the most votes does not mean they should occupy both positions i.e PM and president. That is why the COE chose that path.
Of course if you are Kikuyu Mp you’d find such an argument plausible. After all the Kikuyu is the largest tribe. Ok lets change the context a little bit. If Moi was in power do you think Kalenjin would support a motion to reduce his power at any foreseeable future. I doubt it. Thus my conclusion is … The Kikuyu and Gema has more to gain with the Status quo… and will not vote for a new constitution that diminishes their voting power and ability to rise to the top.
didier:
I think it all depends with the way you understood my take on KE,it would be honourable if u had asked me to substantiate it.its not clear why u think he is light headed,maybe because his opinion is different from yours……..u may differ with somebody but his/her argument is very strong,that is simply my take on KE.
Didier,it would be better if you erased the tribal tumour from you argument on the new constitution,otherwise it ain’t gonna make any difference to u and u will always look trully outdated.
KE
Here you go again! always negative thoughts about Kenya> The constitutional draft is out now for debate so its a bit late for you to say that we do not need a constitution.
No matter how flawed the draft is, we do need to look at it, debate it. contemplate and then vote on it.
My conntetion is that we need to have proportional representation at the constuency level. I mean that currently, the densely populated areas are under represented. This is how ODM ended up with majority seats in parliament and yet PNU got more votes in the elections.
This is a major issue that needs to be tackled.
Checking out……
I can’t help noticing that there is no critical debate in the Kenyan media about the latest draft. Politicians are so afraid of US visa bans that none dares criticize the draft for fear of being labeled ‘anti-reformist.’ Unfortunately, Kenyans may just pass a draft without critical analysis for the sake of having a new constitution. The way I see it, this latest draft will dismantle the State if implemented and is likely to unleash more instability in coming years. Come to think of it, the Draft goes way beyond what a constitution is supposed to do and has lists and lists of specifications best left to Acts of Law.
Godfrey:
This draft constitution will never pass because the PNU MP’s are absolutely not going to give Raila power through the constitution.
Where in the world do people share power? That’s madness. If you want power you have to fight for it, either through an election or through the gun (or through rigging).
Raila’s problem in 07 was that his supposed win was too close to call. In Africa, if you are going to acquire power through an election, you need to win by a wide margin, otherwise it will be rigged by those already in power.
Now, the Kalenjins will not vote for Raila and neither will the Kikuyu, so his chances of winning in 2012 are zero and that’s why he’s trying to gain power by manipulating the constitution. He knows he can’t get it with the votes & he tried violence and that didn’t work. So, this is his only chance, but it won’t work (again).
massaka,
Forgive me for not elaborating on KE’s lightheadedness. It has nothing to do with him having a different opinion from mine.
All am saying calling someone like KE a great thinker is an insult to Great thinkers. Thats all am saying.