Uhuru at last! The new Constitution and the birth of the Second Republic

The new Constitution fulfils nearly a century of search across generations for a people-centered social contract, expressively articulated by Kenya’s founding fathers and mothers in the words of the national anthem: May justice be our shield and defender, may we dwell in unity, peace and liberty plenty be found within our borders.

This harks back to the struggles of Me Katilili and Harry Thuku at the dawn of colonialism, Field Marshal Dedan Kimathi in the Mau Mau era, Jaramogi Oginga Odinga, Bishop Alexander Muge and Reverend Timothy Njoya under a despotic one-party state.

The historic quest for a people-based constitutional order found expression in Jomo Kenyatta’s classic, Facing Mount Kenya (1938)—an eloquent enchantment of the African history, culture and personality as the true foundation of a free, just and prosperous society.

However, like Britain’s other 52 colonies, Kenya entered the “First Republic” at independence on 12 December 1963 with a constitution negotiated in London with heavy input and tinkering by the departing imperial power to secure the interests of its white settler subjects.

Notably, the architects of the Lancaster document introduced a trite form of ‘ethnic federalism’ popularly known as Majimboism as the lychpin of the new constitutional order.

Not Yet Uhuru

This balkanised Kenya’s 42 groups into warring blocs—‘oppressor-oppressed’; ‘majorities-minorities’; ‘herders-farmers’; ‘settler-native’ or ‘indigenous and foreigner’—armour-plated ready for combat. In parts of the country, this severely abridged citizenship rights, created a new fault line in Kenya’s politics and laid the seedbed for future violent conflicts.

Sadly, Kenya’s one-party elite cashed on this ethnic ideology to buttress what Frantz Fanon theorised as “ethnic aristocracy”— a trend by the ruling political class to marshal their ethnic kith and kin to win and retain State power to the exclusion of the rest.

The made-in-Britain supreme law delivered what the historian, Basil Davidson dubbed “flag independence” as the document turned into an albatross for the “First Republic” (1963-2010), unable to wipe out the four foes of the people: ignorance, poverty, disease and tyranny.

Predictably, this gave way to a new age of despair with the classic, Not Yet Uhuru (1967), by Jaramogi Oginga Odinga becoming the emblematic oeuvre of the ensuing post-colonial doom and gloom. A raft of amendments to the Lancaster law systematically removed existing checks and balances between the arms of government, subordinated Parliament and Judiciary to the whims of the Executive.

This transformed what American scholar, Joel Barkan, rightly described as “accountable authoritarianism” of Kenyatta’s de facto one-party state into the blistering strongman rule of Daniel arap Moi’s de jure one-party state (1982-1991). This brought social inequalities, human rights abuses, extra judicial killings, arbitrary detentions, disappearances, assassinations, mis(use) of state power to terrorise citizens, mega-scams and impunity to a whole new level.

Kenya returned to multi-party politics following the 1991 repeal of section 2A but remained a perfect case of a “trapped democracy.” Tragically, as Kenyan political scientist, Dr. Karuti Kanyinga, rightly observed, the “people did not take power.”

Instead, a lethal mix of a ‘dirty war’ on opponents and cynically underwriting a pharynx of ethnic warlords and militias during the 1992, 1997 and 2002 elections enabled the Moi state to re-capture and retain power, forestall the “second liberation” and effectively consign democracy to cold storage. Despite the Moi-era rhetoric of “Wanjiku constitution,” a people-centered constitution remained a dream deferred.

Power tussles

The victory of President Kibaki’s National Rainbow Coalition (Narc) over Moi and Kanu in the 2002 election rekindled the dream of a ‘second liberation,’ with the multi-ethnic coalition promising to deliver a new constitution in 100 days. But paradoxically, they succumbed to elite power tussles, leading to a new “politics of interregnum” — where the old is dying and the new has refused to be born.

Ominously, the deadly ‘fruit fiasco’ between the “Bananas” and “Oranges” in the November 2005 referendum — where the government-sponsored draft lost—set the stage for the 2007 show-down between President Kibaki’s Party of National Unity and Raila Odinga’s Orange Democratic Movement, and the 2008 post-election madness that pushed the country to the brink of state failure.

In the 2007-2008 hiatus Kenya entered the league of what political analyst, Larry Diamond, aptly christened as “democracies in retreat”. Not surprisingly, the February 2008 National Accord considered a comprehensive review of the Constitution as keystone of Agenda Four and the central pillar of the post-bellum political stabilisation to pull Kenya from the brink of state collapse.

A Nation Reborn

The new constitution is unrepentantly people-centered, recognising the Kenyan people as the sovereign power and putting them at the epicenter of the new social contract. As Dr. Kanyinga has noted, “People have taken power through this Constitution. We have entered an era defined by people’s power.”

The new law lays a solid foundation for an enduring democratic architecture, providing a political corollary to Kenya’s economic blue-print—Vision 2030. The hallmark of the Constitution is a bill of rights unparalleled anywhere else in the world. But the challenge is how to harness resources to underwrite this generous rights regime.

Promulgated against the backdrop of the 2008 violence, the document is a master-piece in political stabilisation. Adopting an American-style presidential system, the constitution creates one centre of power around an Executive checked by Parliament, Judiciary and a spectrum of actors in Kenya’s public sphere.

One of the most revolutionary aspects of the new constitution is the redrawing of the political map of Kenya as 47 counties replacing the existing eight provinces as the centre-piece of devolution of resources and decision-making to Kenyans at the grassroots.

This system marks a remarkable triumph of ‘developmental devolution’ over the ideology of ethnic federalism (Majimbo) as an idiom of ethnic polarisation.

Challenges

As a people, Kenyans have crossed the Rubicon with the new supreme law fulfilling the long delayed dream of a people-focused social contract. President Kibaki’s galvanising leadership in campaigning for the Constitution has enhanced the prestige and appeal of the presidency as the focal-point of implementation.

Evidently, the referendum campaign has contributed to the spirit of national rebirth and healing, enabling the country to overcome the negative impact of the 2008 violence on its national psyche, international image and sovereignty. Ensuring the full implementation of the new Constitution is, certainly, the single most important national agenda after the promulgation of the document.

Key to realising this agenda is the need to maintain the momentum and national consensus during the transition phase. Equally critical is the imperative to avoid the potential risk of political paralysis and uncertainty that could arise from elite fragmentation and elbowing for presidential succession and the 2012 elections.

But with the post-referendum elite alliances and jostling for 2012 presidential elections, Kenya’s public sphere including the civil society, the media and human rights watchdogs have a heavy lifting to do to ensure that the implementation process remains steadily on an even keel.

Finally, it is important to ensure that efforts to tackle impunity relating to the 2008 violence, especially the activities of the Hague-based International Criminal Court (ICC) do not derail the implementation process.

Prof Peter Kagwanja is President of the Africa Policy Institute who also served as a Co-Director of the National Referendum Secretariat Coordinating the Yes Campaign