Don’t let court slow review momentum

The two-decade long road to a new constitution has been long and arduous. It has claimed many scalps, left even more crusaders bankrupt, embarrassed, maimed, misunderstood, many lawyers richer and many other people just plain confused.

The last attempt was all-inclusive and brought peasants, professionals, gold-diggers, religious leaders, interpreters and even village headmen to Bomas of Kenya. Then it was assumed that with all the heads banging together, no one would surely stand in the way of whatever document they hammered to replace the Independence Constitution. How mistaken they all proved to be.

The current and then serving Attorney General as well as other State actors on their own or at the behest of others ‘revised’, ‘reworked’ and represented a document for voting at a referendum and it was resoundingly rejected by the people.

Several earlier attempts to make ‘progressive’ amendments to the 1963 Constitution came a cropper as an inscrutable single party regime kept reformists in detention, exile or on their heels, fleeing baton-charging State agents. Also, successive attorneys general ensured single party politics thrived in perpetuity.

Impartial referees

More recent was the, as yet unexplained, two-word insertion into the current draft at the Government Printer leading to calls for the constitution review process to be aborted.

And on Monday, the question that came to mind was whether there is merit in the notion that judges are impartial referees who mechanically make calls and dispense tokens of Justice.

Do the judges’ background and experiences among family, social settings or intellectual pursuits come into play when they dole out judgments?

Perhaps they should, for that is why we appoint judges, not computers. But, what could Muslims and proponents of the ‘Yes’ campaign be thinking now? Are they are being encouraged to support a constitutional draft that has been declared illegal by supposedly impartial judges?

Wouldn’t Muslims especially, rightfully harbour reservations and questions about whether the judicial deck had been stacked from the start?

True the High Court judges went out of their way to extricate their 114-page write-up from the current charged clime, saying it did not target torpedoing the current push for a new constitution, but the timing could not have been worse.

It was suspect and likely to be perceived as yet another spanner in the works as Kenyans rally sufficient votes to usher in a new constitutional dispensation.

Ours is not to question or re-interpret the conclusions of the three-judge Bench that ruled that the section entrenching Kadhis’ Courts in the supreme law was discriminatory to other religions, but labour to maintain that a ruling for a 2006 case coming at this hour is suspect, to say the least.

Kenyans are at the same time being exhorted to learn to respect the strength that lies in their diversity, varied opinions and resources, just like the stoutest pillars are reinforced with many different materials.

Foregone conclusion

We have argued in these columns before that the trouble with Kenya has been the mode and stilted structures of governance as contained in the constitution.

That the current one is flawed is a foregone conclusion. Trouble is that any attempts, however clean-hearted, have so far driven straight into various walls of vested interest, all seeking to maintain the status quo.

Forgive many for seeing Monday’s court judgment as just another hurdle to surmount on the road to constitutional Canaan. But all groups calling themselves Kenyans must learn to co-exist inside the whole, and any attempt to drive a wedge between faiths, ethnic groups and races is a sure path to ruin.