Kenya’s 2010 Constitution is one of the most progressive in the world. It’s citizen-empowering. It devolves and deconcentrates power from traditional foci. It was a deliberative document arrived after a national catharsis. It was participatory. It’s a document born of bitter experiences and disappointments with the state. The basic logic of the 2010 Constitution was to defang the state and subject it to citizen control. But constitutions are not unlike other man-made documents.
They are creatures of political compromise. That’s why they are imperfect and suffer from any number of deficits. Kenya’s 2010 national charter isn’t different. It’s an opportune time to review it after nearly a decade of implementation. The Kenyatta-Odinga handshake is a starting point. I will focus only on one aspect of constitutional reform in this piece. My concern today is exclusively with devolution. Let me make it clear that I am fan of democracy.
As Winston Churchill once quipped, “democracy is the worst form of government, except for all the others.” Translation – democracy isn’t perfect but it gives us the best opportunity to realise the most happiness for the greatest number. Compare to dictatorship, one-party state, monarchy, rule by murder and you get the point. It’s not that liberal theory and philosophy have settled the paradox of the zenith of human civilisation. No – but it gives us the most optimal legal, political, social, and economical path to a better and decent life than others.
But democracy has many pitfalls. It can be normatively contradictory as a matter of internal logic. For example, democratic theory rests on the wisdom of the majority and the acquiescence by the minority to that wisdom. That’s a problem because the majority isn’t always wise, moral, or even right. History is replete with tyranny of the majority over others, or the catastrophic choices that the majority may make in choosing rulers.
Or the apathy of democracy where majorities abdicate the vote by staying home and thereby allowing a vocal and activist minority to decide elections. Some historic examples come to mind. Germans democratically elected Adolf Hitler. More recently, Americans elected Donald Trump – a racist, xenophobe, misogynist, and liar.
No device has been created to conclusively fill the deficits of democratic theory. The Bill of Rights is one tool meant to constrain a majority run amok, but it too is insufficient. Of course majorities aren’t a problem per se. But they become a problem when they go tribal, which they often do. Here, I am using the word “tribal” to signal a silo, not the prototypical meaning of the tribe as a pejorative. Thus our “tribes” could be ancestral, ethnic, racial, or ideas-based. In Kenya, for example, supporters of Jubilee could be tribal, even though they belong to different tribes. So could NASA’s. In the US, Republicans could be tribal as could Democrats – are often and usually tribal.
So, the “tribe” is a catchall that describes an unhealthy community that’s united by bile, arrogance, racism, or other malignant identity bonds. In Kenya, we have both forms of tribalism. We have the tribalism of the supposed ancestor – like the Akamba, Luo, Kikuyu, and so on. These “tribes” include and exclude based on a presumption of the common ancestor, language, region, or culture. That’s why you often hear the phrase “your name betrays you.” But we also have the “tribal” cocoons wrapped in religion or ideology. These are no less insidious.
But in Kenya, the most damaging “tribe” is the ancestral one. Our ancestral tribes are the bane of the Kenyan state and why we haven’t cohered into a nation. Kenya is a British colonial concoction. It was a cocktail of hemlock. It was meant as an instrumentality of control and exploitation. It’s organising principle was “divide and conquer.” This was Lord Lugard pure, simple, and evil. In 2009, the High Court ruled that Kenya had 46 legal districts, excluding Nairobi. The court struck down the 210 districts created under Moi and Kibaki since 1992. What’s most interesting is that the 46 districts were a virtual facsimile of the colonial districts created by the British. This is key – the British created districts based on the tribe. Where the tribe didn’t exist, the British forged tribal consciousness. We inherited the colonial tribal districts until they were gerrymandered between 1992 and 2009.
We reverted to same colonial districts to create our current 47 counties. Our counties are colonial tribal relics. They are too many. Most are economically unviable. They foster ethnic consciousness and are a barrier to forging a Kenyan nation. They are money pits. Let’s reduce counties and redraw maps to combine tribes. Machakos, Muranga, and Kajiado should be one county. This will make the Agikuyu, Akamba, and Masai live together. Use this formula of new cartography everywhere.
- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua