My Final Stand on the Proposed Constitution of Kenya

Hi, my name is N.V and I am a citizen of Kenya.
These are my final reflections on the eve of the August 4th 2010 Referendum on the Proposed Constitution of Kenya.

The quest for Kenya’s new constitution has polarized society to the extent that even usually neutral institutions such as academia and religious groups have become partisan. These institutions would ordinarily serve as arbiters when society is embroiled in conflict. For the past three months in a row, the Constitution has been Kenya’s most debated subject to the point where it overshadowed the just concluded World Cup tournament in South Africa.

Sadly, the constitutional debate has been reduced into a contest of ‘Greens’ (proponents of the Proposed Draft – ‘Yes’ vote) and the ‘Reds’ (opponents of the Proposed Draft – ‘No’ vote) on a handful of contentious issues which have been conveniently isolated from the contents of the draft Constitution as a whole. This minimalist approach to constitution making has overshadowed the strong and sound fundamentals that underlie this proposed Constitution. Let us rise above formalistic, moral, political debates over the few contentious issues dividing us and look at this constitutional process as a whole. Shall we? Why did Kenyans spill blood, break limbs, get detained or even maimed? The real struggle for a new constitution has been to strengthen and protect human rights and good governance; achieve government accountability; facilitate generational and gender equity; promote and safeguard separation of powers; foster open politics; establish a high quality civil service capable of administering government policy effectively and impartially; address corruption broadly; foster an open and productive debate between government and civil society; and enhance economic transformation and social justice and access fair and speedy justice for all.

My dear friends and fellow colleagues, we have reached the proverbial crossroads: Tomorrow, we will all be going to the polls to vote whether we accept or reject the proposed Constitution of Kenya. It is unprecedented for any country of the world to have had one let alone two constitutional referendums, not to mention reportedly being the most expensive and longest constitutional review processes in post-World War II history. And the results? Nothing yet. But as Kenyans we have still yearned ever so patiently for a new Constitution. Why? Two reasons: we wanted and still want the best possible constitution in the world; one that would defend individual rights and freedoms while at the same time safeguarding national interests and secondly, Kenyans wanted to be involved in the constitution-making process. We wanted a constitution we can own and call our own. And I agree that “owning” this constitution lies in healthy disagreement and robust debate, which in our case has led to the formation of the ‘Yes’ and ‘No’ camps. But this is not a winner-takes-all contest since we are all Kenyans and our primary objective should be to move Kenya forward not for our personal benefit but for the greater good of this and the coming generations.

A few years back, a writer by the name of Lev Grossman published an article entitled ‘Forward Thinking’ in which he said: “Albert Einstein, in 1932 remarked that ‘there is not the slightest indication that nuclear energy will ever be obtainable ….. Thomas Edison thought alternating current would be a waste of time…. Franklin Delano Roosevelt once predicted when he was Assistant Secretary of US Navy that airplanes would not be useful in the battle against a fleet of ships…. In 1883, Lord Kelvin, President of the Royal Society and no mean scientist predicted that ‘X-Ray will prove to be a hoax.” To all this Grossman concluded that “there is nothing like a passage of time to make the world’s smartest people to look like complete idiots.” Borrowing from Levy’s wisdom, I am of the view that those who are opposed to the proposed constitution may think that they are the smartest people but time could prove them ‘complete idiots’.

As Kenyans, we know that a constitution will not magically solve all the contentious political problems of this country. But it will provide a shared spirit and framework for re-structuring and re-organising our politics, economy and society in a democratic and just manner. Our new proposed constitution will therefore become a focal point on which political leaders can develop a political culture, which enlivens and fosters integrity. A constitution will not establish constitutionalism. A constitutional culture and a prudent constitutional jurisprudence (in which the three branches of Government, lawyers, academics, citizens, the civil society, among others understand their respective roles) establishes constitutionalism.

A “good” constitution is not drafted; its hopes and aspirations are not in its elegant and spotless phraseology. A good constitution is lived and experienced; its strengths and hopes are in its interpretation and jurisprudence.

I am afraid that Kenyans will be searching for a perfect constitution for a long, long time unless they realize the simple truth that pleasing everyone on every single contentious issue is an exercise in futility.

12 thoughts on “My Final Stand on the Proposed Constitution of Kenya

  1. I share those sentiments with you. People lost their lives as others got maimed in the name of liberating Kenya.
    A constitution will not take us to heaven, but will prepare us to get there. The road to integrity, transparency and accountability should not be marred with skepticism.
    We can only strive to make Kenya the best if we open our eyes and cool the blood that was spilled in fighting for a new nation.

    For the purposes of development, Kenya needs changes and this is the right time.

  2. I foresee a situation where we will pass this constitution, then 40 years later, our children will be fighting at another referendum.

    A constitution doesn’t make a state. A state is made up of the people. Bad example is the fact that Somalia has a 2009 constitution while Britain doesn’t have a written constitution.

    Unless we change the calibre of leaders (which I don’t think we’re about to), it doesn’t matter what kind of constitution we’ll have in place. Like someone said, it doesn’t matter if you change the forest and have the same monkeys in the new forest.

    Saying we adopt a new constitution then amend it makes me wonder, what have the legislators been doing since 92? Didn’t they have the power to amend laws then?

    It’s good to be positive and hope for great things post referendum, but also, let’s be realistic here.

    A document will not transform the country overnight.

    • Kellie, this is not naivete or blind optimism. No one is expecting Kenya to transform overnight if we espouse this document. Far from it. This constitution, if it passes, will provide us with a legal framework to hold our leaders accountable.
      Moi has been videotaped, shamelessly might I add, saying that the only reason he was able to get away with doing the things he did during his rule was because the laws in place allowed him to! And to a large extent, he is right. Checks and balances, transparency, accountability, a justiciable Bill of Rights applicable to all Kenyans and State institutions is what will move this country forward and make sure no one holding government office will ever get away with impunity ever again.
      That being said, laws are only as perfect as their makers and Lord knows human beings are not perfect. We will no doubt have to amend the constitution down the line and these amendments will be done democratically and hence we will begin to have what I call a living constitution.
      What we have now in this proposed Constitution is a set of principles that have worked in other countries like Post-Apartheid South Africa (particularly the Bill of Rights), so passing it may seem like a small step. But it is nonetheless a step forward.

  3. I actually think that we as the people are to decide what is good or bad for us. It does not help when we sit there and keep blaming our politicians and yet we ourselves are the ones voting them back to power. If we really want change then we have to work for it. As they say “change begins with you then spreads”
    I tend to believe that peace,love and unity is like an air-borne disease. We have to cough it out and just inhale it then it will spread like wild fire.
    It does not matter what tribe or what ethnicity I hale from but what maters is what I,as an individual,can offer the country.
    Let as remember to keep our Nation in prayer even if you are in or out and just pray that the Almighty may bless us as a Nation and that we may stay in peace and grow in love.
    I love my country. Pamoja tuangamize chuki na utengano.
    God bless

  4. People always get the leaders they deserve….yes our leaders are a reflection of us as a society on many levels. Vent and whine but recognize that change starts with me n u….so how about we get to this challenge of fixing our goddamn country…eh our children shall inherit it

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