Demagogues bound to wreck law review
The grandstanding over the leadership of the Constitution of Kenya Review Commission (CKRC) may yet prove to be the fatal kiss for the review exercise. Our constitution making may suffer irreparable damage for lack of a consensus if many of those engaged in it lose faith in the leadership.
Unlike the experiences during the Kanu regime, the proceedings at the Bomas Conference do not enjoy unqualified public support given that the conduct of the delegates has been the subject of repeated public condemnation, which imperils the entire process.
While those supporting the CKRC chairman Yash Pal Ghai may celebrate temporal success, eventually the initiative will flounder for lack of consensus. The genesis of the current crisis needs to be properly understood and the implications of having a divisive leadership appreciated if the exercise is to be salvaged.
Those who blindly support Ghai should understand that leadership demands the subordination of individual views to the collective will. It was, therefore, perplexing for Prof Ghai to publicly support those who have taken the commission he leads to court.
This stand defies common logic and would ordinarily demand that he resigns if the institutional position is greatly at variance with his beliefs. If he chooses to hang onto the office while at the same time supporting the adversary, he merits accusations of opportunism and self-interest.
As a delegate to the Bomas conference since its inception, I have been struck by the acute absence of principled dialogue in the deliberations. Bomas I plenary debates, for instance, witnessed rampant complaints that the conference had been turned into a views-seeking exercise reminiscent of what happened at the grassroots.
In addition, a disproportionate amount of time was allowed to certain constituencies, primarily the district delegates and Members of Parliament, leading to the sidelining of other groups. There was also open hostility towards those who took positions perceived to rhyme with the views of the Government, an attitude that still persists.
The problems have been aggravated by those who have sworn to "see no evil, hear no evil" on the draft constitution or the Commission's leadership.
Unfortunately, a strong culture seems to have developed of intolerance to any views that contradict either the draft constitution's main proposals or even the conduct of the process.
This culture appears to have afflicted even the Press, which presently exhibits inexcusable irritation towards any proposals that question the value of continuing with what is clearly a flawed process. It looks as if, for the period of the review, we will have to take collective leave of our faculties and agree to tag along at whatever cost.
As a patriotic Kenyan, I strongly believe in the need for a more democratic constitution. My disagreement comes when demands are made for endorsement of a new dispensation without the benefit of testing it against a set of pre-agreed principles.
Indeed the absence of any settled principles to guide the discussions is the primary reason why most debates in the technical committees are merely rubber-stamping the draft's proposals.
The potentially divisive debate about the Kadhi's courts is a case in point of a provision that breaches the principle of religious parity or neutrality. The controversial question of the cost of the proposed structures arises because of the absence of economic principles or guiding benchmarks on fiscal management.
This lack of guiding principles has led to the obscene horse-trading that characterises review discussions and is sure to guarantee us a sub-standard constitution.
I propose that the CKRC provides leadership in agreeing to a set of principles to guide the remaining phases of the process. These principles should include, among others, those on the people's supremacy and universal suffrage, respect for human rights, religious neutrality, administrative efficiency and fiscal or economic sustainability. Any provisions that contradict the principles should be struck out.
It is doubtful whether a motley crowd of 600 odd individuals spread over a disparate 13 disjointed committees can provide the kind of focus required to mesh all the principles into one solid and wholesome document. Those opposed to the idea of an "experts group" need to soberly rethink this proposal.
In my view, the single biggest lapse in the draft constitution is its failure to embrace a philosophy on the role and functions of a government in a modern state. For many years, Kenyans have looked to the government as a cash cow, a place to go for jobs and other favours. We have failed to see the government for what it truly should be - a mechanism for facilitating the smooth and efficient pursuit of our individual and collective economic interests.
Instead of liberating Kenya from this suffocating mentality about government as saviour, the draft constitution excercabates the malady by purporting to "bring government closer to the people" through the creation of ill-informed, expensive and unsustainable multiple political structures. The extravagantly utopian Bill of Rights does not make things any better.
What Kenya needs is not more, but less, government. For this to become a reality, we have to detoxify our minds of past misconceptions about the role of government by accepting that individual success depends largely on the choices we make in life, and only marginally, if at all, on what government does.
If we are not careful, Kenya may end up like the drunkard who goes on a binge hoping to forget his woes. When we finally wake up from our stupor, we may yet realise how foolish we were to have partaken of the binge instead of being content with the moderate sip. Because yesterday's problems may continue to stare back at us in defiance.
Comments\Views about this article
Mr Njiraini is the Institute of Certified Public Accountants of Kenya Chief Executive and a delegate at Bomas.
BT Yahoo! Broadband - Save £80 when you order online today. Hurry! Offer ends 21st December 2003. The way the internet was meant to be.
