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Shylock's missed detail ruined his case; Kenya is also on same track

 Then-President Mwai Kibaki displays the Constitution during its promulgation at Uhuru Park, Nairobi, 2010.[File, Standard]

Discussions have emerged as to whether Kenyans need to consider a few amendments to the Constitution of Kenya 2010. That has invited in my heart memories of my A-level days when I acted in Shakespeare's Merchant of Venice.

I later undertook Political Science in my undergraduate studies and not literature because the latter was a course for bookworms which I was not especially good at. I was more of a 'think on your feet' kind of boy who had little patience with that bookish thing. Art, however, has a way of mirroring life and as an administrator, over the years, I have seen sections of what we read in our literature class being enacted in real life.

In the beautiful story, Basanio lays his lustful eyes on a lady from Belmont that he decides to seduce. Basanio has no money because he is an extravagant one which he openly admits to his close friend Antonio. He approaches Antonio seeking to be funded in his excursion to Belmont to warm his way into the heart of lady Portia who he describes as 'fair and fairer than the word itself... sometimes from her eyes I did receive fair speechless messages'.

Antonio is a well-known merchant with the reputation of the good man of Venice. He tells Basanio that his goods are still at sea enroute to Venice. He doesn't have money now. He asks Basanio to find a lender and he will repay with interest in three months. Basanio seeks out Shylock, the Jew of Venice, whose trade includes lending money at an interest. He accepts and gives out three thousand ducats to Basanio. Antonio, who is the guarantor, must however sign a bond which expressly states, "If you repay me not on such a day, in such a place, such sum or sums as are expressed in the condition, let the forfeit be nominated for an equal pound of your fair flesh be cut off and taken in what part of your body pleaseth me."

I was Antonio in our high school play. The three months of the bond elapsed without my ships arriving in Venice. I, therefore, could not raise the sum to pay the debt in good time. You can image the scare of losing a pound of flesh cut from a part of my body that pleased Shylock.

It becomes a heated exchange with racist slurs from the large gathering at court since most are Venetian who hate Jews. But word comes to the duke that there is a learned young doctor established in law who has heard of the case and is on the way to Venice to judge the case.

He asks Antonio to prepare his breast for the cut and orders Shylock to prepare his knife. As Shylock moves towards Antonio, the young doctor stops him and says "This bond doth give thee here no jot of blood." The words expressly are 'a pound of flesh' .......but in the cutting it, if thou dost shed one drop of Christian blood thy lands and goods are by the laws of Venice confiscated unto the state of Venice."

Shylock's face falls. He gets scared. The matter turns to what in modern parlance is described as the shoe moving to the other foot - what he wished for Antonio has now become his peril. This play, written by the English-speaking world's most respected playwright, William Shakespeare, is about the conflict between compassion and self-interest. That in an unprecedented hurry to benefit oneself, a man signs a deal with little regard to finer details which emerge later when the realities of life dawn.

 Charity Ruguru Karindi, 93, cast her ballot at a polling station in Gichugu, Kirinyanga County, during the August 2022 general election. [Andrew Simon, Standard]

Shylock failed to consider that flesh on a living person cannot come out without an ounce of blood. That is quite analogical to Kenya's political storms after every presidential election under the 2010 Constitution. A country cannot elect a president without sections of that country voting for his most adept competitor.

At the making of the 2010 Constitution, the country seemed to reorganise the job of president and gave it to the politician that gets the most votes at a presidential election. Few stakeholders thought about the reality that the candidate who emerges second at a presidential election may also be a most popular politician who cannot be wished away.

This gave us a constitution that has a major failing, politically speaking, which in my view, is the cause of ongoing political upheavals which have been emerging after every presidential election since 2013. That problem has been how the country treats the politician that comes second at the presidential election. According to our current supreme law, that politician goes home with nothing despite carrying the aspirations, dreams and hopes of millions of Kenyans that voted for him at the election.

Azimio leader Raila Odinga, for instance, has been going home with the hopes and aspirations of millions of people who have voted for him at three separate presidential elections. That is because the current Constitution does not envision a role for the candidate that emerges second.

During the March 4, 2013 presidential election, Raila under the Cord brigade garnered 5,340,546 votes which was 43.7 per cent of registered voters against Uhuru Kenyatta's 6,173, 433. He proceeded home with the hopes of over five million Kenyans. With nothing much to do under established formal structures, Raila surmounted pressure against the Jubilee administration complaining about this and that leading street demos that ended up disbanding the first team of electoral commissioners formed under Kenya's 2010 Constitution. That, in itself, revealed the power that a serious competitor at a presidential election commands.

In 2017, Raila under the NASA brigade garnered 6,822,812, 44.94 per cent of registered voters against Uhuru's 8,223,369. He once again proceeded home with the aspirations and hopes of nearly seven million Kenyans. The power he held then was seen clearly in his causing a unstable political environment in the country that initiated talk of secession.

There were street demos which culminated in a dramatic mock swearing ceremony for him as People's President. That swearing in to me was akin to Adonija brother to Solomon who declared himself king despite David the father having anointed Solomon. He was later to be executed by his bro Solomon when he demanded to be given Abishag a beautiful girl who had been brought to David to nurse him during his twilight years.

For Raila, this was to manifest through the support he got from an outgoing rather unpopular president.

As is known to all Kenyans, there was a political bromance signed between him and President Uhuru Kenyatta, which was an acknowledgement that a presidential candidate who emerges second commands a sizeable part of the country.

 Uhuru Kenyatta with Raila Odinga at Harambee House, Nairobi. [File, Standard]

Today, the demonstrations being called by Raila are disrupting the normal course of business at a precarious time in the country. Any sober leader would be praying for some quiet space to reorganise the country's unstable economy.

The power to successfully call these demos is hidden in the millions of votes that Raila has been getting at every election that he has run. Today as he leads ongoing threats for mass action he has behind him 6,942,930 votes, according to IEBC at last year's election. Meaning, he has nearly seven million registered voters in the country that believe in him and millions of others that did not vote or are not registered.

Our supreme law, therefore, failed to recognise the realities of our politics which older democracies sorted out through practice, law and tradition. The United Kingdom, for instance, through tradition has across the centuries, had the leader of the party that emerges second in the number of seats at every parliamentary election become the leader of the official opposition. It is an automatic job that they assume immediately after the elected MPs have taken their seats in the House of Commons. The job comes with the dignity that goes into such an office, which included membership to the Privy Council - advisors to the monarch. The opposition leader also holds weekly consultations with the Prime Minister on matters of great national interest.

In the United States, whose presidential system we borrowed to a great extent while enacting our 2010 Constitution, a politician does not resign from their political office to run for president or vice president. Senators and governors that have run and missed the job have gone back to their political jobs. This practice benefits the country in the sense that it does not lose its political talent anyhow.

Politicians in the US also have one advantage that is borne of the law. The country holds each election separately and does not overburden itself with six elections in one day as is the case in Kenya. Once in a while, a presidential election can coincide with Senatorial or House of Representatives' but utmost care was taken to allow the country to hold at least one election at a time.

For instance, John McCain returned to the Senate as member for Arizona. That in my view is another idea worth borrowing as we consider amendments to our 2010 Constitution. This is, therefore, to say that our supreme law has made us behave like Shylock who missed the important fact that you cannot extract flesh on a living person without drawing some blood- he therefore lost the case. We must be careful not to lose by ignoring the realities in our politics that the politician who gunners millions of votes at a presidential election and emerges second holds the aspirations of a large constituency of the country and has power at his disposal- whichever way he chooses to use it affects our public life.

It is my considered view, the 2010 Constitution be amended to provide for the office of the leader of official opposition, a job to be taken up by the presidential candidate that emerges second at a presidential election while two jobs of minority at the Senate and National Assembly be set aside for the his/her running mate and a coalition leader whose party garnered the most seats.

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