New constitution needed to midwife 2012 General Election

By JOHN B OSORO

Politicians have another opportunity to reconsider their alliances as the 2012 General Election draws near. The referendum brings President Kibaki and Prime Minister Raila closer as unlikely allies, leading a ‘Yes’ campaign, while William Ruto joins the Christian clergy and an ‘invisible’ lobby of large landowners in a ‘No’ campaign.

Ruto and the Rift Valley political elite prefer a three-tier federal system of government that is causing unease among communities fearing the possibility of ethnic cleansing.

Besides, the more the Rift Valley elite continues to antagonise the State with utterances suggesting that the region ought to remain untouched, the more they encourage the centre to consider splitting the giant province into manageable units to ensure continued political stability.

To make matters worse, the Maasai districts no longer find the politics and posturing of the Ruto team representative or even sensitive to their interests, especially with regard to the Mau Forest politics. After 24 years in government, these Nyayo-era elite know the centre will act to restore some equilibrium by, for instance, containing individuals or groups whose activities pose or are a potential threat to national unity and stability.

That aside, the clergy too is rooting for a ‘No’ vote. The problem is traceable to the inherent weakness of the Proposed Constitution whereby it engages in narrow arguments otherwise reserved for statute law or regulation. Ideally, a constitution should concern itself with broad outlines on how the people ‘shall be governed’, instead of dwelling on specifics on how that ‘will be done’.

One wonders why, for instance, a constitution should concern itself with a transient issue like abortion when the document is essentially about the philosophy, structure, and working of a state.

Secular document

Using the western criteria for determining types of constitutions Kadhis’ courts would be an anomaly of sorts, the Proposed Constitution being a secular document.

However, the departure from the western approach succeeds in providing a fitting solution and role model for application in situations where Christians or Muslims are a minority group. This innovative clause offers express constitutional protection to any minority from possible interference with their religious beliefs. In fact, instead of complaining, the clergy should feel proud Kenya has inadvertently devised a workable political formula that perfectly settles this potentially explosive religious tussle.

As international lawyers may advise, Kadhis’ courts are a price Kenyans paid to inherit the ten-mile coastal strip from the Sultan of Zanzibar at Independence. We should be content this country is not a rogue state that ignores its international obligations at will. Furthermore, the clergy should also consider the probable consequences of alienating Muslims by expunging the Kadhis’ courts from the Proposed Constitution.

Similarly, arguments that Treasury should not fund Kadhis’ courts are ill advised considering Muslims are also taxpayers. Since the Proposed Constitution already borrows a lot from western political thought, Christians are inevitably the greatest beneficiaries of the proposed law.

In other words, the political culture that informs the document is itself a product of Christian traditions and norms and so are our ordinary courts. The clergy ought to recognise that our Christian modesty, and indeed certain sections of the new law, prohibits us from compelling Muslims or members of other beliefs to follow our religious practices albeit through established courts of law.

Apart from the clergy, the other ‘No’ campaigners are not articulate as to the exact areas they find objectionable, or on the concrete alternative ideas that may improve the text, and how that translates into public good.

Nightmare scenario

Considering there is a powerful ‘invisible’ lobby in Kenyan politics that has, for 20 years, opposed the entire process of rewriting the constitution, is it possible this force is hiding behind these dissenting voices.

Apart from these hiccups, most pundits agree that the Proposed Constitution is a much better document than the current one. But, with opponents upset about its contents and omissions, Kenyans face the prospect of reverting to the old system of government known for abuse of public resources through corruption, exclusion, nepotism and ineptitude.

It is a nightmare scenario should Kenyans conduct the 2012 General Election under the Constitution, which brought our country on the verge of self-destruction in 2008.

The writer is a political analyst and media consultant.