• With the scent of ‘referendum’ in the air, constitutional lawyer Bobby Mkangi explains what ails Kenya,
  • He speaks on the problem of divorce, homosexuality and the law and why a rotational presidency is a ‘kumbafu’ idea

With your dreadlocks, do you have problems getting legal briefs?

I am not in traditional legal practice. I do not go to court. I however undertake a lot of legally oriented work as a consultant.

You were in Starehe Boys Centre. It is a shadow of its former self. What was it about founding director, the late Dr Geoffrey Griffins style that Kenyans can’t muster?

Dr Griffin was rare. He was a visionary who dared. He was charismatic, ‘mysterious’ and inspirational. He was influential as against being manipulative.

He commanded integrity and was compelling. He was God-fearing. Above all, he was human. The current situation is disheartening but there are efforts and especially so by old boys to see that the institution returns to and betters its former glory.

Old Boys of Starehe have issues with women. Is it because Dr Griffin was a lifelong bachelor?

Do they? If they do I think and feel that it has nothing to do with Dr Griffin’s personal life choices. My recollection is that Griffin encouraged family life (as traditionally rendered). Boys were encouraged as much as possible to socialise and mingle with girls.

There were visits from girls’ schools and vice versa. Letters from girlfriends were eagerly awaited. Old boys were encouraged and happy to come celebrate their weddings at the school chapel. Dr Griffin would grace many of such celebrations.

My reflection is that despite his choice to remain single, he tended his ‘sons’ towards the ‘family way’.

Do you think divorce should be made easier?

No. Marriages should be made easier and supported. Marriages are failing due to an inadequate social support system. I do not know how and when divorce is made ‘easy’.

I have experienced divorce in my family and nothing makes it easier.

You were involved in writing the new constitution. What would you consider the most difficult moment of that period?

When we published the Harmonised Draft Constitution of Kenya on November 17, 2009, it was received with much disdain and negativity especially by politicians.

We were called all sorts of names including ‘committee ya wakora’! It was disheartening.

In your view, are we ripe for a referendum?

I support the call for a process to re-look the Constitution. The process should however be inclusive and far-reaching, not one designed to secure ‘political deals’.

The process should also not be rushed so that Kenyans can effectively and informatively participate. Note, however, that the Constitution prescribes certain amendments through Parliament without a referendum.

Do you think changing the system of government will solve our problems?

Not unless we change our political culture. As the late Professor Okoth-Ogendo stated, we are a good example of a country that has a constitution (the form) without the attendant culture (constitutionalism).

Reviewing the Constitution in an environment where senior government officials blatantly flout court orders is not encouraging.

What then would you say are our problems as a country?

I think we have not sufficiently accepted that Kenya is an assemblage of diversities. We assume that we are a ‘nation’ whereas we are a plethora of ‘nations’ - diversities and interests considered.

This assumption engenders exclusivity. Exclusivity breeds political insecurity which in turn bears the culture of ‘political survival’. Tribes, bribes and false scribes become kosher – as long as they sustain political advantage.

How do we solve them?

By constructing an objective multi-national state. A state that is alive to our heterogeneity. We must ask ourselves basic questions about the state- What, why, how, when Kenya? So that we ‘reform’ or re-imagine Kenya.

Would creating a rotational presidency among tribes as has been suggested help?

I am sceptical that this shall solve the problem. Which are the tribes? Which one goes first? How long is a term if we are all to see ‘our tribe’ president in our lifetimes?

Is the issue as simple as seeing a tribemate president? Even if the presidential term were six months, it would take more than a generation for some tribes to ‘enjoy’ the presidium. To me, the proposal animates the ‘it is our time to eat’ instinct more than anything.

It does not address itself to important questions of values, and functional integrity that come with the office.

What do you make of Francis Atwoli’s calls to create a position for President Uhuru when he retires?

Mheshimiwa Francis Atwoli has a right to his opinion. He jealously guards and diligently exercises it. With time and industry, he has managed to join the few who can truly ‘enjoy’ the right.

However, President Uhuru’s role as a retired president and therefore an elder statesperson in Kenya and beyond is already defined.

Under the current constitution, women must inherit their fathers’ property. What was the reasoning behind this? Do you see it creating conflicts within families in the long term?

Equality, justice and fairness! What the Constitution did was to constructively entrench a legal position that had long been well established in our country. Cultural antecedents and perceptions however still challenge the legal framework.

Culture should not be used as an ‘excuse’ to discriminate against our sisters, mothers, aunts, grandmothers, wives and daughters. Culture transcends and is dynamic. Where there is equality, equity, fairness and justice, there is harmony as against conflicts.

Conflicts exist in families today due to lack of appreciation of these core values.

Why did makers of the constitution provide equal rights for all but still bar same sex relations?

It is Kenyans, the makers of the Constitution, who created this paradox. The Kenyan Constitution was popularly generated; public views informed content and public acclamation via a referendum authorised the new dispensation.

With time perhaps, and like in other jurisdictions that have changed public and legal positions on the matter, the Kenyan society’s take on the matter shall also tip.

Homosexuality is illegal in Kenya. What is the process of arresting a self-confessed gay like Binyavanga Wainaina?

In my understanding, the law (Penal Code – sections 162 and 165 particularly) criminalises the sexual act and not the orientation.

The Constitution proclaims what the state recognises as marriage. By declaring his orientation, Binyavanga Wainaina has neither offended the Constitution nor has he committed any crime.

He however cannot marry a person of similar sex in Kenya.