A constitution without a Kenyan definition of “democracy” is dead on arrival

BY Shadrack Muyesu

The Constitution of Kenya 2010 is hailed as progressive on several accounts. The first is its Liberal Democratic nature. Inter alia, the demand for free, fair and regular elections allows the majority to rule while protecting the minority voice. The second is an elaborate human rights framework which, far from perpetuating a certain public culture and morality, accepts our differences and protects those who would otherwise have no place in this society. 

Thirdly the Constitution is anchored on the Diceian Rule of Law and separation of powers. In toto, it demands that no man shall be condemned unheard, that all men are equal before the before the law, and that the written law passed in accordance with the constitution supersedes any arbitrary powers of the State. 

The final and its most important quality is that this constitution is a negotiated document. Unlike many similar documents which carry the vision of a few gentlemen, the 2010 constitution is in theory, comfortably Kenyan in character having been created and adopted by Kenyans in a referendum. Negotiability makes it transformative in that it is a realisation of the aspirations of the Kenyan people.

Having said so, it’s quite obvious that what gives our constitution relevance amongst its celebrated peers is not its homegrowness but rather, the fact that it bears all the hallmarks of what is universally accepted as the good constitution. And therein lies the problem.

One would imagine that the progressiveness of our constitution and its general acceptance among Kenyans would make it readily acceptable to all. But contrary to popular belief that we have this marvellous constitution which responds to our needs, our collective experience suggests that it is everything but the document we wanted. We never even read it.   

There have been some successes. In particular, devolution of resources cannot be ignored. In sum however, the truth is that the Constitution hasn’t achieved the objectives it set out to achieve. For starters, impunity isn’t any less rampant than it was before 27^th August 2010. According to some indicators, it’s even worse. The burgeoning public debt and runaway corruption for instance are testament of a parliament that has long abdicated its oversight duty.

Elsewhere, the association of power and resources with the Presidency is clear sign that we are yet to understand devolution. Devolution isn’t about creating semi-autonomous polities: rather it is about ensuring that national resources are shared out equally to every region within the Republic irrespective of political leaning. The question of “presidential neglect” should never arise. 

We cannot force a solution from Europeans that have never had to deal with actual diversity with expectation that, like theirs, the African continent will thrive as a beacon of democracy.

Wanjiku’s hopelessness in the face of corruption and the constant blame levelled against state organs as entertaining the vice also shows that Kenyans neither understand nor appreciate the vast powers the Constitution gives them in directing public affairs. Apart from voting rights, the Constitution allows disgruntled Kenyans to sue government agencies: petition for a release of information held by the state, to picket and demonstrate as well as recall corrupt leaders through public petitions. At a time when technology has made communication much easier, wouldn’t it be better for the so called opinion leaders to mobilise citizens and collect signatures to remove inept leaders from office rather than merely addressing the problems on Twitter or at press conferences that no one pays much heed to?

That the 2013 Senate boasted a high number of accomplished lawyers and professionals, all of whom ran for the position on the misguided belief that it was superior to the National Assembly is further evidence that beyond the popular song, the Constitution not only a foreign document to most, even its daily consumers did not read it- not at first. 

Many will blame these failures on the absence of a culture of constitutionalism. And while they are right, I hold the view that constitutionalism is much harder to achieve where the document is neither properly negotiated, the players do not understand it. If Kenyans are to accept the Constitution and apply it scrupulously, it must reflect their collective psyche and mirror their socio-economic and political characteristics. It must be a homegrown solution, Kenyan in every sense; otherwise we will resist it and sometimes, without even knowing it.   

A quick glance across the global map reveals that our kind of constitutional order, the Liberal Democratic order, succeeds in jurisdictions that are sufficiently homogenous, urbane and with high literacy levels while failing massively where the population is largely rural and highly stratified along social, economic and cultural lines. Even more crucially, we mustn’t forget that in the West, democracy took generations to cultivate into this marvel we all now covet. Consider the stand out performers in the United Kingdom and the United States. In the former, the system has been developing consistently for the last 400 years – and that is if you discount classical Greece. Our Constitution is barely 10 years old; surely a child must crawl before he can walk. 

In conclusion, allow me repeat a tired song. The typical western country is dominated by a single tribe. England is for the English, France for the French, Germany for the Germanic speakers and so on. There are differences of course but they are largely superficial; nothing but limping relics of the iron ages. Consider the UK; although a number of local dialects exist, the de facto language spoken by 98 percent of the population is English. In reverse, there isn’t a language called Kenyan, Tanzanian or South African. Countries in sub-Saharan Africa are an ugly mix of unrelated tribes mashed together. It’s an unfortunate accident of history which we are only emerging from and are still trying to figure out how to relate to each other. 

In every sense, our situation is unique. To force a solution from Europeans that have never had to deal with actual diversity with expectation that, like theirs, the Continent will thrive as a beacon of democratization is, in the words of DP Ruto, kuota ndoto ya mchana. (