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Changing law is not the solution, we need to think outside the box

By Andrew Kipkemboi | August 30th 2020 at 09:12:24 GMT +0300

LSK president Nelson Havi addresses congregants during the commemoration of the 10th anniversary of the Constitution. [Wilberforce Okwiri, Standard]

“The enactment of the new Constitution,” said Charles Hornsby, “had the potential to catalyse a change more fundamental than anything since 1965.”

In Kenya: A history since Independence (2012), the historian was optimistic but cautious that the 2010 Constitution “could allow Kenya to break free of the past, but could reinforce ethnic segregation, devolve corruption and create administrative chaos.”

It is not hyperbole then to conclude that the Constitution presented to the country a heady mix of threats and opportunities.

There was hope and peril.

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In fact, the March 2018 Handshake between President Uhuru Kenyatta and former Prime Minister Raila Odinga, following the disputed 2017 presidential election, was proof of the inadequacy of the Constitution.

Considerably, the political bargain that was struck in 2008 has not held strong. We were reminded of the likelihood of things unraveling.

There again before our eyes was evidence of the ruinous political competition experienced every electoral cycle.

Elections had proven not sufficient to cause the change the people envisaged with the passage of the Constitution.

It now seems (justifiably) that the new laws did not create an honest system where those who lose in an electoral contest, walk away acknowledging that they will live to fight another day.

And even now, there is all likelihood that the next elections due in under 23 months will produce the same results; acrimony and another round of contestation and perhaps another Handshake.

The conundrum is that in spite of a Constitution, our politics remains a Darwinian struggle for political survival – those with power fight so hard to hold on to it and those seeking it fight tooth and nail to get it.

The Constitution has not drained out the swamp of hatred and partisanship nor has it muted the anger and deep-seated tribalism out of our politics.

Voters understand politics “as an ethnic duel of champions, a gladiatorial contest in which winning the game” is “more important” than what the leader does after winning.

Because it has not reduced the stakes at the centre by disrupting what Hornsby calls the “patron-clientele politics”, corruption and the culture of rent-seeking is as pervasive as ever. Democracy thrives when everyone feels that they have a stake in it. The absence of that leads contestants (losers mostly) to resort to undemocratic means of expressing their disappointment.

Hornsby observes that as a result of patron-client relationship, “the (Kenya) State is not seen as impersonal, but a coiled mass of interests, harnessed by a political bureaucracy towards the wishes of the dominant political thread.”

Political crisis

The four agenda contained in National Accord and Reconciliation Act 2008 that gave birth to the Constitution have not been dealt with conclusively.

It looks more, not less, likely that violence will flare up at the next and the next electoral contest, thus precipitating a political crisis.

Because the underlying causes of the frequent electoral violence remain largely unresolved, healing and reconciliation is a work-in-progress.

The trouble is that the 2010 Constitution was premised on the false presupposition that new laws were an end in itself; that it would cure corruption; reduce poverty, ignorance, disease; end election malpractice. Most importantly, that it would remove the veil behind the skewed allocation of resources, promote transparency and equity.

Though it offered a chance to redraw the past by correcting past mistakes it was foolhardy to imagine that an overhaul of the Constitution will of itself address the country’s challenges.

It is simplistic to also imagine that renewed calls to change it will deliver different results. Many agree that the 2010 Constitution is a fresh breath of air.

Some of the noble ingredients of the new Constitution include a robust Bill of Rights; a clear separation of powers between the Executive, the Legislature and the Judiciary. The most radical inclusion was devolution.

Whereas it was expected that the new Constitution would create strong institutions that act as a counterbalance to the overbearing Executive and that the politicians would play by the rules. Alas, we have witnessed the Executive ride roughshod on the other arms of government; it has smothered the independence of the Legislature and thereby undermined its ability to oversight it.

Former statesman Oliver Cromwell – who led the British Isles at the end of English Civil War (1642-1651) on who and how to govern the English Isles – warned that unlimited power was bound to corrupt the minds of those who posses it.

“Where the law ends,” he concluded, “there tyranny begins.”

Because of weakened institutions, the system is still rigged against so many Kenyans who remain voiceless.

The Executive has sought to beat into submission public watchdogs keen to question its excesses. It has bullied the media while the civil society cannot agitate because of State encumbrance.

Indeed, there is a strong sense of déjà vu: the underlying problems that the new Constitution had sought to address still linger. Many wonder what an overhaul of the Constitution will bring. Is it a question of hardware or the software?

Critics concur that it is a software issue rather than a hardware issue.

“The problem is not the chair but the person who occupies the chair,” tweeted Nelson Havi, the LSK president.

For example, what is all that talk about there being an outbreak of jobs and prosperity with a Constitution? What will change?

Here is the thing, though there has been a positive economic outlook, it just remains on paper. The economy has not opened up to accommodate everyone because the Government still imagines that its business is to create big things for the people. That is how it then becomes a conduit for corruption and State capture.

“Kenya,” writes Hornsby, “is a true neo-patrimonial state – not one in which the state is a veneer, a fig leaf, but one in which bureaucratic process and norms compete and coexist with personal authority and prebendalism.”

The consequence is that a sluggish economy, rising unemployment and corruption remain a huge drag.

Meanwhile the crooked, who mostly are the rich elites, dodge taxes and break the law willy-nilly.

The barriers to the high table remain high and the government remains an exclusive club of a few.

In spite of that, with a large and growing and increasingly assertive middle class, Kenya retains the capability and will to become a regional economic powerhouse.

The regret is that the politics have remained static and the ruling elite has throttled any meaningful reforms aimed at anchoring the new Constitution. Hence, the widespread cynicism over fresh attempts to alter it.

Parties have failed to espouse the ideals of democracy. Instead because parties have not evolved as fast as the politics, political party honchos’ main preoccupation is how to cheat democracy. And cheat, they have.

The absence of opposition loyalty means that rather than offer a viable alternative, the Opposition is befuddled and ill-prepared less than two years to the next elections.

“Elected leaders in office when the Constitution was promulgated in 2010 saw it as a tool of ascension to the Presidency only. They still do. The realisation that it was People centred informs their desire to amend and disinterest in implementing or celebrating it,” tweeted Havi.

Harvard professors Clayton Christensen, Efosa Ojomo and Karen Dillon in The Prosperity Paradox observe that programmes that focused primarily on institutional reform eventually fail and that most countries keep doing the same thing over and over again and failing over and over again.

Whereas the promise was that the Constitution would make it easy to hold to account leaders, increasingly, the masses look overpowered by the tiny coterie of leaders and power brokers.

So what to do?

Do we throw the baby out with the bathwater?

“What then remains for us but to stand foremost in the breach, to repair it, or to perish it?” Cromwell asks.

He adds: “This is the challenge those who want to defend what is just and good must confront.”

“I have better hopes for the Constitution,” Oliver Cromwell concludes.

- The writer is an Associate Editor at The Standard.

Constitution Law Review Constitution of Kenya
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