Kenya’s New Constitution – The Old is Dying but the New is not yet Born.

The Nairobi Law Monthly | October 2010

AN UNDERSTANDABLE EUPHORIA overcame Kenyans once it became clear that they had voted overwhelmingly for a new Constitution on August 4. The struggle for a new constitution had taken over two decades. For some who had struggled, suffered imprisonment, exile and worse, the relief was overwhelming. Any country needs hope. After the post-election violence (PEV) of 2007-2008, in our own collective imagination we needed it more than most. It seemed fitting that after the near-death experience of the PEV we should turn things around so quickly before sliding further down the index of the world’s ‘failed states’.

Kenya is living a moment of hope. It is in moments such as these that declines are halted, the right course returned to and great things start to happen. We’ve been here before though, in 1991 when Section 2a was repealed, in 2002 when Kanu was removed from power, and briefly in 2007 when it seemed as if a change was about to happen but the election was incompetently stolen leading to an almost calamitous orgy of violence. So, now, finally, a new Constitution. Kenyans are a persistently optimistic people. It is our right and affirms our “exceptionalism”.

THE PROMULGATION AS HALLUCOGENIC INCREMENTALISM

This time round, however, more Kenyans than before seem willing to accept that the euphoria is phony and will be short-lived. This is a good thing. A series of commissions, and frantic reform agenda ‘monitoring’ over the last two years has led to a kind of hallucogenic incrementalism that contradicts our own sense of exceptionalism. It fits in well with the cynics and racists who found common cause in the dysfunctional coalition administration: “This is Africa, what do you expect? They are a bunch of primitive tribes in suits, liberal democracy takes hundreds of years to develop… Give them time. They’ll grow up into responsible adults on the global stage.”

The promulgation ceremony was symbolic of the hollowness of the ‘victory’ and a harbinger to the challenges incumbent in inculcating a culture of constitutionalism that Kenya faces. On the very day the nation celebrated promulgation of the new constitution, the government chose to invite to the celebrations the President of Sudan Omar el Bashir who the new Constitution made it a legal imperative for Kenya to arrest because of an International Criminal Court (ICC) warrant for alleged genocide, among other crimes. He was seated on the same dais as Kofi Annan, former UN Secretary General and chief mediator during the Kenyan crisis, who was not acknowledged by the government in the  speeches, official and otherwise, and under whose tenure at the UN the ICC was created. There were smaller signs for the superstitious to ponder on. Kenya’s gathered musicians were brought out to celebrate the glorious moment – and the sound system failed. The doves of peace were released by gathered notables – but many flew backwards instead of up and into the bright sky of the future. Someone had forgotten to put helium in the celebratory balloons, so when they were released, they failed to float. Hats off to President Bashir, who at least used his walking stick to try and keep one of the sorry balloons airborne. But for me his presence there, the brazenness of it, was an excellent reality check forcing a hangover before the first beer and a measure of the realities to come.

In this article, I hope for the best while preparing for the worst, while recognising the huge impatience of Kenya’s youthful (and indeed, if the referendum campaigns are an indication of anything, most of the) population with the current order. So let us not ring the bells of a hollow victory too loudly, for tomorrow we shall wring those same hands as one of the most corrupt elites in the continent ‘implements’ the most energetic constitutional counter-reform strategy ever employed since Mobutu’s giant constitutional conference in the early 1990s.

THE HARD FACTS

Some facts, both good and bad, but mostly good: We shall have an election in August 2012.  Second, MPs will not be ministers. Third, and perhaps most critical, there will be 47 county governments controlling at least Sh100 billion by July 12, 2013. Fourth, there shall be at least 60 female MPs and Senators. Fifth, the “50+1 rule” could mean the beginning of detribalisation of our politics. At the very least, it engrains consensual politics that makes it mandatory for our currently violently fragmented political elite to strike more ethnically equitable power-sharing deals. Sixth, the ICC will likely get bogged down in Kenyan mire that will conflate into the wider African one, forcing a rethinking of that institution and how we deal with impunity ourselves on the ground.  The idea of ICC as Kenya’s silver bullet against impunity will be laid to rest.

It must be remembered that Kenyans, despite the travails of the last decade and a half, continue to have faith in democratic processes. Thus, defying the dire predictions to the contrary after the disillusionment following the PEV in 2008, they turned out in huge numbers to vote for or against the new constitution, after registering to do so in unprecedented numbers. This is Kenya’s saviour – her people. That said, the results demonstrated that no idea as yet transcends the ethnic one and so the tribal number-crunching by the elite in the new dispensation has started already. The voting patterns among the Kalenjin in the Rift Valley during the referendum, for example, is a wake-up call to the real forces that may drive some of the most important decisions that will be made in the coming months. Similarly, the demonstrated ability of   “tribal chieftains” to sway voters from other communities is an important pointer to underlying persistent realities.

THE CHALLENGE OF MAJORITARIAN COUNTIES

The creation of 47 counties is the most critical reality that will inform politics in the short to medium term. We now have an upcoming devolved government. Perhaps, not as robust as the immediate post-independence majimbo one that was scuttled almost immediately it was promulgated, but devolution nevertheless. This comes on the back of a widespread national acceptance of the failure of the Central Government to deliver public goods at the local level, CDF etc notwithstanding. The 47 counties and an assertive Legislature will be the most defining new constitutional realities over the coming crucial 18 months and are thus likely to be most contested.  While there has been, understandably, much attention on ‘implementation’ of the Constitution, the self-implementing new realities stated above will be more important in the short to medium term. Theorists and elements of the international community will likely be outwitted by our hardened elite in the bigger ‘implementation’ project – Mr. Bashir’s visit being indicative here. By far the greatest cost to Kenyans here will be with regard to corruption, and by extension security – Somalia is a battle waiting to be lost and with it the organic spread of a kind of radicalism that knows no borders.

Local government, as we knew it, is dead. It does help to keep in mind that it is a weak and illegitimate administration that is devolving power. This creates the tendency towards atomisation and acceleration of ongoing elite fragmentation. Chapter 11 of the new Constitution articulates the parameters of devolution under the new constitution but the practice will be very different. In all likelihood, power will be grabbed and members of the elite will not sit around waiting for it to be handed to them in the new county structure. The command and control machine that has been the backbone of governance in Kenya, the provincial administration, is struggling to redefine itself out of the Office of the President.

The most serious existing service provision gaps by Central Government in Kenya today are to do with security. The county structure will make dealing with these more complicated if they are not thought through and agreed on in the coming couple of years.

There shall be a temptation to informalise security – an ongoing trend since the 1990s that reached its nadir in 2008 when government elements called on Mungiki and not the police to prosecute this vital public function in the Rift Valley. This has legitimised groupings that could find compelling currency at the county level.

There are clearly three types of counties: First we have the homogenous counties dominated overwhelmingly by a single ethnic group. Second we have the majoritarian counties which are dominated by a single ethnic group but also occupied by significant self identified minorities. Third we have cosmopolitan mainly urban counties comprising a wide variety of ethnic groups. However, in this last category too, ethnic political enclaves shall exist. Clearly identity politics in Kenya is about to undergo a major shift not only because of this but the fact that the diaspora through dual citizenship and the right to vote at home will become a potent domestic political force. The province seems dead. Former President Moi, even though he has chosen to speak in disturbing riddles at times, seems in particular to decry the death of the mighty Rift Valley. This will have political consequences quickly.  Managing the security and administrative changes implied by all of this will define what devolution will eventually really look like.

The politics of the majoritarian counties in particular, and how they are managed, will define the new Kenya more than the words in the constitution. Initially the borders of some will also be ethnic battle lines. Such trends are not uncommon where a weak centre devolves to the periphery leading to a peripherisation of power that creates powerful currency among those we once sneered at – marginal populist politicians, youth gangs and other informal wielders of power at the local level on the margins of the law.

THE MORBID SYMPTOMS OF COUNTER-REFORM

As Italian philosopher Antonio Gramsci once wrote: “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear”. The next 18 months are this interregnum.

During this period, it is likely that counter-reform will come from three flanks. The first of these is a coalition of elements coalescing at the Office of the President, the Ministry of Foreign Affairs and the security services, as they try to preserve the melting command and control structure in the face of a slightly nebulous new reality. The Ministry of Finance will be the other pillar of anti-reform, albeit with a smile and a pat on a back and with far more compelling justifications than colleagues at Harambee House. Security in the devolved reality – and I mean reality as opposed to what is written in the Constitution – will be an important challenge. How the police and the administration police are rationalized and deployed will be important. Also key will be ensuring that the NSIS doesn’t become a turbo charged “Kenya News Agency” with the capacity merely to disturb people and rig the occasional poll.  A third flank will gather around political interests, comprising of  business interests  (who are also  members of the state elite), political actors and elements of the first two flanks who will work overtime to undo what appears like a political head start for Raila Odinga as we go into the next elections.

Politicisation of all mainstream media accompanied by fragmentation (especially with regard to vernacular regional FM stations) will intensify as well. It will be accompanied by a greater alignment between the prevailing commercial and political counter-reform interests. These all point to a situation of less – not more – truth from the media in the coming few years, especially with regard to graft and security. Much attention shall be dedicated to political noise and dust raised as consensus and stability become the driving forces of editorial policy. Some of this was seen with regard to the reporting of the recent Bashir debacle where op-ed writers within the mainstream media, counter-reformists within the administration, and – with the appearance of incompetent hesitance – the African Union, chimed in to explain away why Bashir had to be in Kenya on the 27th of August in particular. This makes the work of the reborn Nairobi Law Monthly all the more important at this critical time of transition. The pressure on what is the region’s most robust journalistic fraternity will be unprecedented in sophistication and persistence.

SECULARISATION OF KENYA’S PUBLIC SPACE – FOR NOW…

The role of the Church seems to have been changed fundamentally as well. In the 2007 General Election, churches were perceived to have been not only openly partisan, but also divided and, in many cases, politicised on ethnic lines. They paid a high price in terms of credibility. Hundreds of churches, sanctuaries during previous episodes of political violence, were razed to the ground especially in the Rift Valley. The leaders of the Church took the ‘NO’ side during the referendum, thus seeming to go against the grain of government’s ‘YES’ project that was overwhelmingly supported by the Kenyan people desperate for the change promised by the new Constitution. They became associated with the most hard-line, uncompromising supporters of the same. At worst, from the perspective of the religious leaders, the ‘YES’ vote seemed to demonstrate that Kenyans want them  out of the public space. At best, wananchi do not seem willing to follow religious leaders blindly on political matters and reserve the right to make up their own minds. This secularisation of public space is dramatic. It has not played out fully because most Kenyans value their religious identity only second to their ethnic one. This, I admit, is not altogether completely true for urban youth in particular. The referendum unfortunately also planted the seeds of future religious contest that needs to be acknowledged and mitigated, especially as events in the Horn of Africa unfold against the interests of the West.

A million workshops and the billions of shillings spent on civic education since the early 1990s have left the Kenyan population unprecedently ‘empowered’ and ‘informed’. So successful has the empowerment project been that the State’s capacity to keep up has been woeful, even after sucking up a host of civil society actors into government and learning to speak the language of reform, accountability and transparency before the necessary audiences.

In truth, the Kenyan government cannot keep up with the expectation of its digital age youthful population that was organically empowered by the post-election violence.

Violence is incredibly liberating to the powerless. It is noteworthy that at both the YES victory event outside the KICC on August 5, and during the promulgation ceremony on August 27, the Prime Minister spoke directly to the belligerent youth to manage the moment. Sombre moments of great national gravity had to be reduced to the language that spoke to the mob.

The mob has ruled since 2007. Elements of it – some informal gangs – have been legitimized in entirety. The success of devolution is made all the more urgent by the need to deliver to this giant constituency of locally expressed demands, now articulated in the language of empowerment, finessed in  over a decade of workshops. The basic architecture for this delivery needs to be in place over the coming 18 months.

WHAT COULD GO WRONG?

We have a new Constitution. What do we have going for us? A great deal. First, there is that fundamental Kenyan faith in democratic processes. It has created a moment of hope out of the promulgation of the new law and we thank President Bashir for the reality check that made sure we didn’t get carried away into thinking that because we had changed the forest the monkeys have changed.

Second, and this particular blade cuts both ways: Kenya is of tremendous geopolitical significance. The very viability of some of our neighbours is inextricably tied to Kenya’s stability. Kenya, for example, is the commercial capital of Somalia.

This means a level of outside interest that may not always be in alignment with national interests. Third, is the country’s reliance on taxes. Kenya doesn’t have oil or some other wretched extractive industry – we have only ourselves as the country’s primary resource that is much sought after in the region.

Fourth, the politics of consensus would appear to be engrained – elites have to negotiate and make political deals to share the spoils of power.

We have a new constitution. What do we have going against us? Powerful venal and corrupt elements of the ruling class that are more entrenched and experienced in theft than any on this side of the continent all the way down to Cape Town. Their capacity to alienate and exacerbate already stark inequalities should not be underrated. They will be the drivers of counter-reform.

There are inklings of a generational divide which is significant here however. Second, devolution can become the victim of counter-reform which will shatter many expectations considering it is the primary informal instrument of the diffusion of Executive power that Kenyans have always sought after. Third, counter-reformers have much to benefit from violence over the coming 18 months.

This would mean manufacturing violent episodes here and there, creating the psychological ground upon which the command and control structure of the Kenya Government can be justifiably retained. Finally, as mentioned before, the only serious political planning about seems to be about how to stop Raila Odinga ascending to the presidency.

This lends him some vulnerabilities, and will create unlikely alliances

CONCLUSION

We made it. We passed the Constitution. This is a huge step and provides us with an unprecedented moment of hope that we cannot afford to squander. Constitution making seems to be rarely benign: it either makes nations or undoes them. Kenyan faith in democratic process gives one hope for cautious and vigilant optimism. Parts of the new constitution will be written (and have already been) written in blood but it will be ours – Kenyan. The hope of Kenyans is also inextricably intertwined with their desperate hunger for alternative leadership that Chapter 6 makes room for if grabbed.

Thus far it seems as if we may have to contend with a major recycling of some of the most discredited figures from our past in the new dispensation. They have been announcing their intentions already. Their success will aim at slaughtering the new Constitution.

The terrain of Chapter 4, the Bill of Rights, will be one of struggle from day one. The Nairobi Law Monthly must be at the forefront of this struggle. ^

Mr John Githongo is CEO

of Inuka Kenya Trust

info@inukakenya.com