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Wanjiku’s vigilance key to law review

By | November 18th 2009 at 00:00:00 GMT +0300

On a journey as long as the one Kenyans have endured in the search for a new constitution, there are many changes. People who were comrades-in-arms in the clamour to make Kenya a multi-party state with the repeal of Section 2(a) no longer see eye to eye. Others who fought them tooth and nail have morphed into latter-day reformists. All have embraced the political divisions encouraged in the early 1990s, resulting in ethnicity playing an overwhelming role in governance.

The results are self evident.

While there is largely consensus on what ails the nation as far as instruments of governance go, there is disagreement on the prescription needed. Much of this is to do with the contests for power between groups that use political parties as ethnic vehicles to wrest governance from each other.

Left to their own devices, they may focus merely on ensuring a system that guarantees predictable transitions from one administration to the next. With the violence Kenyans saw last year in our minds, many of us may fall in the same mental trap. This is why it is crucial for citizens to engage in the debate on the harmonised draft constitution and recall the issues that informed the calls for reform two decades ago.

When church leaders spoke of freedoms and the first of the opposition parties was created, the quest was for things like justice, equity and inclusiveness, not for ethnic supremacy. The push was to mend the institutions broken or weakened in the creation of an imperial presidency — the Judiciary, Parliament, security arms of Government, the Civil Service and so on — not to secure power through equally flawed bodies.

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It is these ideas and ideals, not the shorter term goals concocted in the waning years of the Kanu regime (when the first attempt at constitutional review was made) or under the divided administrations led by President Kibaki, that must inform public debate. The political events of the last decade have changed the nature of the threats facing constitutional review. The Bomas experience, the 2005 Referendum, the 2007 General Election, its aftermath and a number of other events have led to an erosion of principles among some players, a willingness to do or say anything to amass power.

As Committee of Experts head Dr Nzamba Kitonga once warned, the enemies of reform no longer make a frontal attack. They exist on both sides of the ethnically-charged political divide and their tactics and goals are more complicated than in the past.

Nation’s voice

Their voices will doubtless be heard in the next 30 days. This is the time the public has been allotted to study the Harmonised Draft Constitution. They will be the ones drawing attention to red herrings and straw men, and trying to hinder honest debate or a search for consensus. We must not let them deprive this nation of its voice as happened with the contentious Bomas conference.

The criteria by which the media and the public must judge the manoeuverings in this matter, is whether the measures proposed or being opposed strengthen the checks and balances in Government, bolster individual opportunities and freedoms, or resolve divisive issues of equity. Majority acceptance cannot be a criterion on matters affecting minorities.

On governance, arguments to seek political advantages or perpetuate ethnic hegemonies must be revealed for what they are. The document we embrace must end the threat of a recurrence of last year’s violence not by how it ens-ures ‘ethnic balance’, but by introducing changes to governance that make the ethnicity of leaders in key posts incidental. Changes that ensure the triumph of institutions over personalities, of processes over outcomes. We should no longer depend on the benevolence or tolerance of leaders to get basic rights and protections. Or their ‘indulgence’ when exercising fundamental freedoms.

Government, as George Washington warned, is not reason. It is force. Like fire, it is a dangerous servant, a fearful master. This is why we need eternal vigilance. In Kenya’s case, the historic review of the laws that create all instruments of governance demands a new commitment to vigilance. It begins with citizens reading the draft and debating it soberly.

Committee of Experts Nzamba Kitonga Law Review
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