When it comes to injecting morality into our politics, the Constitution has fared better than expected
By Shadrack Muyesu
Although decidedly good, the 2010 Constitution is a collection of lofty ambitions that are not Kenyan in any sense and therefore, on many accounts, impracticable. It is a skepticism I have long held and which continues to be justified by our difficulties in, inter alia, implementing the two-thirds gender rule a decade into the new constitutional dispensation and the failure of liberal democracy to solve our leadership crises. Yet, even my kind of skeptic has to admit that, when it comes to injecting morality into our politics, the Constitution has fared better than expected.
Thanks to the compulsions of Article 27 (8), today, the Judiciary is headed almost entirely by women. Most gubernatorial candidates have named running mates of the opposite gender and there is a fair chance that Kenya will see her first woman deputy president. We can all agree that in spite of the difficulties in applying the two-thirds gender rule, we are experiencing a cultural shift towards gender parity and it’s only a matter of time before the country has its first female president. Slowly but surely, the idea of female leadership is becoming our norm.
Devolution is another great victory. Many dismiss devolution as merely a devolution corruption, but that is because they do not appreciate the impact (devolution) has had in the remote parts of this country. In many of these places, thanks to devolution, it is now possible to access all government services and much more without feeling the need to travel to Nairobi. As means of wealth-redistribution, even in cases of theft, we are comforted by the thought that the stolen resources are distributed across the country rather than ending up in one village in Gatundu or some tax haven.
But that is where the glad tidings end. At the end of the day, our leaders are just as corrupt and malevolent as their predecessors in spite of the great effort to introduce diversity. While we celebrate the new age of female leadership, there is nothing to suggest that they have offered better leadership than their male counterparts. And this brings into question the overall intent of the Constitution. If its goal was simply to redistribute leadership, then we are on track; but if there was a loftier ambition to improve our quality of life, then it has been a proper failure. A constitution that speaks to an idealistic future more than it addresses the here and now is imbalanced in my view.
In our pursuit of equality, we appear keener on distorting the ground rather than leveling it. Take the two thirds principle for instance; while there is nothing in law that says that one gender must be deputized by a person of the opposite gender, considering our current obsession with the idea, we are fast approaching an age where it will be a de facto law. And while it may seem like an attractive proposition, when examined in totality, it is the precursor to numerous social, political and economic problems a developing nation such as ours would rather do without.
Equality of outcomes versus equality of opportunities
On one hand it imposes governments on people when they are forced to forego their preferred leaders for their lesser accomplished alternatives in the name equality. More worryingly, it leaves us with the question of just how far we should go in trying to equalize society. It is simple enough when gender is attributed the reproductive function; but what happens when we are finally confronted with the emerging definition of (gender) as a social construct? Are we prepared to redefine our structures to accommodate males, females and everything in between? Because make no mistake, this exactly what our liberal Constitution expects of us.
The same goes for tribe, disability, religion, race and all other differentiations that Providence imposes on us. How do we accommodate them all in the same government and ensure that all of them are represented according to population ratio vis-a-vis the rest? What science do we employ? If we reward each group with a set of special solutions unique to them, we are soon confronted with a problem of balance and application.
I have said it before, it is impossible to accommodate all the groups in our society with this path we have taken. To pursue this road is to entrench identity politics and widen the divisions within our already highly differentiated society which is a whole antithesis to the social justice and equity our constitution is trying to achieve.
Equality of outcome is about accommodating everybody. It sound good but it rarely achieves the intended outcome (doubting Thomases only need to look at the chaos in the west for perspective). Instead, what we should be pursuing is equality of opportunity which empowers the entire society and affords everyone a fair chance to compete and succeed.
The Constitution already envisages it when it talks about equity as a governing principle. Being a woman, or belong to a particular race or tribe should never be a qualification when handing out opportunities. Dr. King would shudder at the thought.(
— Author is an Advocate of the High Court of Kenya
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