By Shadrack Muyesu
We all accept the need for a dialogue if the Republic is to heal. Dialogue however, does not mean consultations between the National Super Alliance and Jubilee with a view of incorporating the former into government as has often been bandied, however musical that may sound. It is also not true, as is often told, that ours is a political crisis deserving a political solution and that the law is innocent. Indeed, that as well as the idea that a solution to our problems lies in expanding the Executive at the behest of the President is a very simplistic way of looking at things.
Expanded Executive not the solution
One may ask, how does amending the Constitution to allow President Uhuru Muigai Kenyatta (the “illegitimate” president and the face of impunity according to a significant section) to appoint a prime minister, two deputy prime ministers et al, offer reprieve to the disgruntled section? In the event the amendments succeed, is there a guarantee that President Kenyatta will appoint the preferred titanic trio of Raila Amollo Odinga, Wycliffe Musalia Mudavadi and Steven Kalonzo Musyoka and not the unwanted gentlemen in Ababu Namwamba or Raphael Tuju or some other pushover? And in the long term, what happens, for instance, when, in the words of Sheikh Abeid Karume, the shoe is on the other foot? Will the Kikuyu and the Kalenjin accept leaders imposed on them by Raila, perhaps when it’s William Samoei Ruto and Ann Mumbi Waiguru they want? But most importantly, what happens to the rest of the tribes and the smaller parties – people with rights and equally deserving yet without the numbers to negotiate a stake for themselves?
The suggested amendments offer temporary reprieve at best whilst failing to address actual problems of cronyism, bad governance and electoral fraud. As they expand presidential powers, they are a climb down from the Constitution. With the amendments, the presidency will become more lucrative leading to even more vicious presidential election contests – the problem we are trying to run away from in the first place. Depending on the powers and duties that will be assigned to these new offices, there is a danger that the Republic will either be resigned to paying out more to largely ceremonial office holders or it will see conflict in government as different centers of power jostle for influence. These suggestions are poorly thought out and like most opinions out there, stem from a misdiagnosis of the country’s actual problems.
Law, polity and society
The truth of the matter is that ours is a constitutional crisis and not a political one. The turmoil we are witnessing is a reaction to our Constitution as it is the system of government it contemplates. There is a lack of symmetry between law, polity and society; and if the Republic is to permanently heal, one between law and society must adopt to the other. Society must either adopt the law as it is by embracing constitutionalism and patriotism and being more informed and proactive, or the law must adapt to society by appreciating the reality of tribe and our economic “primitivism”. Constitution making and choosing a system of government ought to be the uniqueness of tribe in Kenya, the nature and importance of tribal relations to Kenyans and the role our socio economic activities play in our decision-making. The former is what commentators have been so fixated upon with little success. The latter is the new order. It is the fresh antibiotic hidden in books and text that scholars and commentators today are either not fond of, are too lazy to interrogate or lack the imagination and the dare to try out. To walk this route is to accept that constitutions such as ours, and their liberal democracy, can only be successful in societies with certain qualities, which we lack, and the truth that these qualities take centuries to achieve – not the 50 years we have existed as a country.
If we are to find a permanent solution to our problems therefore, it’s imperative our talks be informed by these realities. Instead of thinking of ways of dispensing with negative ethnicity, we should consider ways by which our ethnicity, however gruesome, will not threaten the existence of the Republic. Change makers in the Federal Republic of Nigeria, for instance, didn’t ask the Muslim north and the Christian south to go beyond themselves and think about the state when and after electing government. They accepted the bias that these people have for those who share their religions and allowed it to persist without threat to peace when they decreed that the Presidency will be interchanged between Christians and Muslims, and that a Christian shall always deputise a Muslim President and vice versa.
This is the example we are to follow. It’s time that we accepted that first, however intelligent, people represented in government through their tribes will never appreciate reform. The law of self-preservation demands that they defend bad government because proximity to power, in the mind at least, means resources. Secondly, we must also wake up to the fact that those outside government, especially the largest tribes who are aware of their ability to secure government for themselves, will never appreciate the good governance of a rival. Because of our histories and our social stratification, the average Kenyan, however informed, will always align himself with tribe first. Finally, we should see that because of their inherent selfishness, according Thomas Hobbes and William Hegel, people will always want to be powerful. With its grace, wealth and grandeur, the office of the President is the most powerful office in the land and being part of a tribe in power is almost akin to being president. These biases can only be washed away by a long tedious socio economic evolution.
Although good and progressive, our constitution falls in the category of nominal constitutions. Nominal constitutions are those that are incapable of full implementation despite all good intention to do so because they do not reflect the general morality, political needs and socio economic environment of our society.
Good as it is, many experts say that a good number of its provisions were copy pasted from constitutions of countries that do not share Kenya’s characteristics. This is the reason both the citizens and the governors resist it, albeit subconsciously. For example, as I have already alluded to, although devolution was meant to decentralise power and resources from the central government, Wanjiku is still deeply invested in the presidency with the assumption that close proximity to power brings with it resources, jobs and security. Many view the country as a monarchy, with the President as a king who has power to reward his supporters. Similarly, in spite of the principles of good governance enshrined in our Constitution, corruption and negative ethnicity remain rampant. Government condones and perpetrate such vices so as retain and reward the support of loyal subjects while citizens are unable to collectively exercise their constitutional duty of overall oversight when doing so threatens the close proximity to power some may feel by having one of their tribe in power. There are many more.
Unlike the West where our constitution was heavily borrowed from, our society is rural, highly stratified and agrarian. Anthropologists, constitutional lawyers and political scientists such as Francis Fukuyama, Benedict Anderson, Ashutosh Varshney and Mwangi Kaimenyi all agree that the system of government, Liberal Democracy, which our constitution contemplates, is incapable of successful application in such a society. In his book, the End of History and the Last Man, Fukuyama even claims that when it is applied in such a society, it is in fact counterproductive. In Liberal Democracy, while the majority has its way through one man one vote, the minority has its say through a public participation and human rights regime that safeguards individual freedoms. Although true on paper, this often isn’t the case in real life, as our recent history has shown, the minorities are often ignored, even oppressed.
In Kenya, tribes often share common origins, economic activities and the same dwelling place. This creates a strong bond among them. Tribe is thus an extension of family to which people are first loyal to before they are (loyal) to the state and the Constitution. More so, many see tribe as a way towards economic emancipation. That people are small scale farmers or with small businesses and high poverty levels leaves people ever more reliant on the tribe for support: therefore, for this reason, in addition to family loyalty, they work hard to ensure their tribe is in power.
Our majoritarian system in which winner takes all in a presidential elections sustains an entrenched privilege the larger communities already enjoy thanks to their number. That they will fight to keep this position (the President by rewarding support and abusing power and the citizens by protecting the president at whatever cost) leaves other communities hopeless and disenfranchised.
To cure this problem, it’s important we consider rotating the presidency, but without taking away the people’s power to choose, or without imposing leaders on the electorate. ^