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Whatever changes we seek, let’s not revert to dark past

By Kamotho Waiganjo | March 23rd 2014

By Kamotho Waiganjo
[email protected]

If our political establishment generally acted in good faith and in the public interest, I would be celebrating the proposed social economic audit of the Constitution.

Almost four years after its promulgation, and one year into the devolved system of government, I believe it is an opportune time to review our successes, failures and missed opportunities in the process of implementing the Constitution. But I have lived in this country long enough to know that even the most noble and well-intentioned projects are usually hijacked for nefarious purposes. Having known the mover of the project, Hon Mutava Musyimi for many years both as a reformist pastor, administrator and one of the few remaining sincere politicians, I don’t doubt his good faith in proposing a review.

What even Musyimi cannot guarantee is that this project will not provide reform nay-sayers the philosophical basis to launch an all-out assault against the constitution on the basis that it is unaffordable. On the assumption that the project is well intentioned and will not be hijacked, I still believe that “economic costs” focus of the assessment should be rethought.

Granted, the Terms of Reference refer to an audit of the “social impact” of the Constitution, but this aspect looks like an afterthought; the rest of the language of the mandate and its housing in the Auditor General’s office betrays its finance focus. The challenge of a purely financial audit is that it fails to appreciate that many of the achievements of the Constitution cannot be given a financial value, and so whereas the costs of facilitating their attainment are easily quantifiable, the social and political gains cannot be costed.

A meaningful cost-benefit analysis would for instance need to start with an analysis of the reasons for which we sought to enact a new constitution, and then assess its success and failures in achieving those objectives. For example, Kenyans wanted a more inclusive government in which discrimination on the basis of gender or ethnicity would be reduced and ultimately eliminated. Kenyans desired an equitable government in which every Kenyan, whatever their politics, was guaranteed not just a share of its resources, but a say in how their resources were managed, hence devolution. All Kenyans wanted an independent and reliable Judiciary and a Legislature not susceptible to the whims of the governing Executive. We all wanted a more open and accountable government in which basic human rights were guaranteed. We wanted a free and fair election so that events like those of 2007 would never be repeated. None of these desires can be given a financial cost, though sometimes history has provided an indication of what it costs not to have some of those issues resolved adequately.

The best example is the post-election violence of 2008 . It is generally agreed that the disputed election results, which arose from flawed electoral process and a non-credible Judiciary, were only a catalyst for far deeper agitation about exclusion and a non-accountable, non-representative government. It is possible to argue then that the more than Sh300 billion that the economy lost in a few weeks is attributable to a bad constitutional framework.

If the principal focus of the audit becomes an assessment of the costs of the structures that were introduced by the Constitution to cure previous defects, without addressing the corresponding costs of not addressing those fundamental issues, it can end up being simplistic and lead to claw back proposals some of which are now gaining traction.

Finally, as we continually assess our Constitution, we must recognise that we are in transition. Transitions by nature have huge short-term costs, yet the benefits of the anticipated change tend to be medium- and long-term. In the midst of the pains of transition, the temptation is to revert to the old familiar, however difficult it was. Like the Israelites of old, we yearn for the garlic of Egypt whilst forgetting the hard labour of the Pharaoh. That is a route we cannot afford to take. Whatever changes we eventually seek, let their primary purpose be to improve on the gains we have already made, not to revert to our dark past.


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