The constitution as a promissory note

When the architects of our republic wrote the magnificent words of the
Constitution and the Declaration of Independence, they were signing a
promissory note to which every American was to fall heir - "I Have A
Dream" - Martin Luther King Jr.

Background

A constitution serves the simultaneous roles of laying the framework
that will govern a society and laying in law the promise - the dream -
that the society has for itself. It protects gained freedoms and guides
and nurtures expansions of freedom. For a government to oversee the
creation of a constitution that is both a foundation and a dream, and
that is also in the interest of justice served not only for the now but
for the future, it must be willing to commit political suicide. It must
be willing to write itself out of office when its usefulness has ended.
It, within its very own conscience, has to understand the people as the
makers of their own destiny and consequently the true makers of
history.

The NARC (1) coalition government does not see its role as the bridge
to a new Kenya. It sees itself as the new Kenya. Instead of fighting
for a constitution that binds future governments to the welfare of
Kenyans, it is fighting within itself to safeguard the political
fortunes of its constituent members. And KANU, the party that can
single handedly claim to have ruined Kenya, is waiting, watching the
fissures grow. It may soon find an opportunity to pounce.

If the NARC coalition government could find within itself the ability
to rise to the challenge of developing a constitution that sweeps away
the legacies of Moi's tyranny and that at the same time holds future
governments accountable to the dreams of the people, it would have done
enough. And if it can do more in creating the conditions in which the
dreams can be achieved, all the better.

But as things stand - and this should be stated boldly and without
mincing words - the NARC coalition is on the brink of failing Kenya. It
will not be because it shall have done any worse than Moi (the last two
years have done more for Kenya than Moi's 24), but because in place of
putting Kenya first, it put its own political survival. NARC has become
the space in which political egos are vying for power and somewhere,
between getting rid of KANU and the elections of 2007, the idea of
Kenya has been lost.

Alliance or Individual political Interests?

Perhaps this is the nature of coalition governments. In Kenya, a
fractured opposition was unable to get rid of the Moi dictatorship
first in 1992 and then in 1997. But it learned that there was not only
safety but strength in numbers, and coalesced into NARC. Under the
umbrella of NARC one found revolutionaries, liberals, disgruntled
Moi-lets, power sycophants, etc, all with the single goal of ridding
Kenya and themselves of the Moi government. In December of 2002 they
succeeded. Instead of seeing this as the beginning, at the dinner
table, they began their war over who was to get the choicest pieces of
the nation - the presidency, the post of prime-minister, cabinet posts,
parliamentary seats, etc. What of the Nation's future? It remained all
but forgotten.

But let us be fair in our criticism - freedom of speech is a
foundational right, a platform from which other rights can be demanded
- and it exists in Kenya now. Free primary education, even though
fraught with fits and starts, is an achievement. AIDS is in the
national agenda. There is a debate over universal health: Those in
favor of a gradual introduction won, but the debate (2) was there
nevertheless. There is a debate over the rights of women. NARC
government cleaned out the corrupt judiciary - a move that showed that
the political will to do right by Kenya was there. Corruption, even
though new and old scandals keep erupting, is at the very least being
debated.

In good neighborliness, Kenya has been instrumental in facilitating
peace in Somalia and Sudan. Internationally, the NARC government has
refused to join Bush's pre-emptive wars. For distancing itself from the
Bush government, NARC is facing threats of what amounts to undeclared
sanctions. The withdrawal of 200 million shillings intended to aid in
the anti-corruption drive, or the tourism advisories or terror alerts
that warn Americans against traveling to Kenya, point to reluctance by
the American government to support a Kenya that is not in toe with its
agenda. Certainly the KANU leadership, with much less commitment to
fighting corruption than NARC, got away with a lot more. And here,
there are two things that need to be pointed out, the hypocrisy of the
West that has never had qualms in supporting dictatorships throughout
Africa and Latin America, but more importantly, the dependency of
African countries to the West - a dependency so great that cleaning out
corrupt officials from the government cannot be done without calling to
the West.

These, nevertheless, are not small achievements. But for each of them,
one can point to much more work that remains to be done. NARC did not
inherit a floundering democracy with a flourishing middle class where
liberal policies can hold the seams together - all avenues of hope and
recourse had been gutted by the Moi government. NARC inherited a
country wedded to neocolonialism and beholden to the IMF and World
Bank, that flouted good neighborliness, where a human life could be
lost at the whim of the government, and corruption and exploitation
were the norm. Poverty is itself disenfranchising, and one needs only
to travel from Dandora slums to Muthaiga Estate or walk from Mountain
View Estate to the neighbouring slum of Kangemi to understand that the
disparity between the rich and the poor will not be cured by free
primary education.

Now, one of the ways that a government recognizes the enormity of the
task ahead is by entrusting the burden of fulfillment to the people. It
does this by facilitating the creation of a constitution which
safeguards them against governmental excesses and at the same time
holds the government accountable for the welfare of the people. Thus
the government becomes accountable not only for the injury it might
cause the people, but also for the injury its inaction causes.

Memorandum of Understanding

Yet it seems to me that the search for a new constitution was
undermined by NARC even before it came into power. The Memorandum of
Understanding (MoU), which was signed behind closed doors and gave
Kibaki the presidency and Raila (Odinga) the yet-to-be-created post of
Prime Minister, should be considered as not legally binding to the
Kenyan people. The MoU was a negotiated (3) settlement between several
opposition parties before they were in power, and is not therefore
representative of Kenyans. It was, as it were, an example of the
carelessness with which the power elite holds Kenyans - that matters
that affect the future of a whole nation can be negotiated behind
closed doors. And no matter whether one finds merit with Raila or
Kibaki, the future of Kenya should not be beholden to promises between
two politicians. If Kenya has to have a Prime Minister, first let it be
discussed and then justified by the Kenyan people. And if the Prime
Minister is to have more powers than the President, then let the Prime
Minister be elected by the people and not by the President, as the
Bomas draft constitution (4) declares. Why should we practice a
democracy twice removed? Elect a President who in turn elects a Prime
Minister who is more powerful than the President? Simply put, who ever
wields the most power should face the electoral public.

Again we are seeing these back-door negotiations that will produce more
MoUs. The one/two-person mini-coalitions within NARC that are emerging
give credence to the maxim that politics makes strange bedfellows. Who
would have thought Charity Ngilu (5) and Raila (6) would play in the
same team in this power game? Thus we have Ngilu and Raila on one side,
and on the other, Kibaki supporters, all with one goal in mind -
getting the most powerful seat in the nation.

And what of the party registration drive? Again, there are hidden hands
with hidden agendas. NARC wants to conduct a registration drive that
recruits individual members as opposed to registration through party
affiliation. Once people register as NARC and not as members of the
constituent political parties, then NARC becomes a single political
party under a single leadership. The coalition thus coalesces into
NARC. This in turn heavily favors Kibaki since he is in control of the
party machinery, thus paving the way for his second term as president
(never mind an MoU that gave the understanding that he was going to
pull a Mandela and not run again). Or if the search for Kibaki's
posterity prevails, his chosen successor is favoured.

With the same move, the Kibaki government is trying to undermine
Charity Ngilu and wrest the position of party chair from her. Under the
current NARC constitution, the sitting chair in the next general
election is automatically nominated. This means that unless Ngilu is
edged away from the NARC party chair, Kibaki would have to pit himself
against her if he is to run under a NARC ticket in 2007. This is a move
that would be very much welcomed by KANU which, without Moi's stick,
will encourage a NARC implosion. Ngilu and Raila are definitely for a
recruitment drive on individual party tickets. By maintaining party
independence, they are setting the stage for other party coalitions
outside of NARC to be formed. The scenario whereby either NARC implodes
and spawns other coalitions or coalesces into one party under one
leadership has been set. Under these circumstances of continuous
political machinations, it is imperative that we the people refuse to
honor any secret MoU's that bind a whole nation to the political goals
of a few politicians.

The Constitution in Balance

Under this whirlwind of MoUs, alliances, and counter alliances within
NARC, it is not surprising that the struggle for a new constitution
also reflects the goals of political survival. Hence Kibaki passed a
bill that allows for the Bomas Draft to be amended by a simple
majority. Certainly the first clause to be modified if not all together
deleted will be the one calling for a powerful Prime-Minister position.
Kibaki, or at least his supporters, have no desire to see him
essentially write himself out of office by curtailing his powers
following his re-election in 2007. But with Kibaki running or not,
there are those who do not want to see the powers of the presidency
reduced.

Raila on the other hand will fight such a modification for with it go
his chances of becoming the most powerful person in Kenya as a
Prime-Minister elected by the President-elect in 2007. He does not
command enough support to win the presidency on his own ticket but he
does have enough support to throw a wrench into the NARC machinery.
Because he cannot win alone, he will try to short-circuit his way into
power by becoming the Prime Minister. And in this quest for personal
power at the expense of the nation, the creation and implementation of
a new constitution is in the balance.

Since the quest for a new constitution has become caught up in the
politics of the day, since instead of the Nation's longevity and
welfare our politicians are protecting their own longevity, it is
imperative that we, the Kenyan people, first oppose MoUs made outside
our consent and remain vigilant against other MoUs being signed with an
eye on 2007 elections.

It is imperative that we demand a constitution that is cognizant of the
vast inequality and debilitating poverty, that is committed to the
liberation of women, sees universal health and education as human
rights not as a privilege, and that addresses land redistribution.

In the Bomas draft, there is a Bill of Rights that recognizes the
marginalized, the principle of devolution and the democratization of
power, equality regardless of gender and many more. It is these aspects
of the Bomas Draft that reflect our refusal to go back to where we have
been and that nurture an egalitarian democracy that we must demand be
kept above the fray of personal political ambition.

* Mukoma Wa Ngugi is the author of 'Conversing with Africa: Politics of
Change' and Coordinator of the Africa without Borders Conference to be
held in Durban, 2006. This article first appeared at www.zmag.org

* Please send comments to editor@pambazuka.org

Notes
1. After having attempted to defeat the Moi party, KANU as separate
parties in 1992 and 1997, in 2002, the Liberal Democratic Party and
National Alliance Party of Kenya came together to form National Rainbow
Coalition (NARC). As a united front, they were able to defeat the Moi
government with NARC getting 63% of the vote and KANU's candidate,
Uhuru Kenyatta getting 30%.
2. See the article, Kibaki: We Cannot Afford Ngilu Plan by David
Mugonyi. Daily Nation, April 7th, 2005.
3. For a good summary of how the MoU was negotiated, see Joseph
Ojwang's article, Wrangles in Kenyan Government at
www.change-links.org/MoU12.htm
4. For a complete history of the Kenyan constitution review process,
visit http://www.kenyaconstitution.org/enter.htm /> 5. Charity Ngilu is
currently the Minister of Health and the NARC Party Chair. In 1997 she
ran against Moi for the presidency and finished 5th overall. As leader
of the National Party of Kenya, in 2002 she allied with Mwai Kibaki to
defeat Moi's candidate.
6. Raila Odinga allied with Kibaki and Ngilu in the 2002 elections.
Before that, he had allied with the Moi government but left when Moi
chose Uhuru Kenyatta as the KANU candidate. He had also been imprisoned
by the Moi government for eight years. Until recently, the relationship
between Raila and Charity Ngilu had always been rocky at best.