Calls to amend the constitution are absurd

Prime Minister Raila Odinga is right when he says that the victorious “Greens” should embrace the vanquished “Reds.” This is magnanimity in victory.

But he is wrong when he promises the “Reds” that “their” amendments will be made. This would snatch defeat from the jaws of victory.

Those calling for amendments – not implementation – of the new constitution need to go back to school and take a class. The course is Democracy 101. What the “Reds” are asking for is an impossibility, a violation of the basic tenets of democracy.

They made their case to Wanjiku, and lost – fair and square. As they say, “there ain’t gonna be a do-over”. The naysayers campaigned on four basic issues – abortion, land, kadhi courts and devolution.

They barnstormed the width and length of the country without let or hindrance. Their coalition was anchored by the Church, without doubt the most powerful private institution in Kenya.

Yet the people – the overwhelming majority of whom are Christians – voted by a two-thirds majority to reject the argument by the “Reds” and endorse the constitution.

The people rejected – convincingly – the amendments that the “Reds” were seeking. The matter is now closed unless the “Reds” want to overturn the will of the electorate. We cannot undo the election – vacate the will of the majority – so that the minority can have their way.

In 2008, Senator Barack Obama was elected President of the United States of America. Could Republicans have said, “Mr Obama should not be sworn in as President until he denounces the right of a woman to have an abortion?” This is what is called the theatre of the absurd.

Once a bell rings, it cannot be “unrung”. This will not be the last charade by those opposed to reform.

They are powerful, and will use every tool in the box to obfuscate issues and try and derail the implementation of the constitution. Expect the abuse of parliamentary procedures to obstruct implementation. Legislators may be approached to defeat enabling bills.

There could be a court challenge to the new law.

You are likely to hear three important words with more frequency – “reconciliation,” “negotiations,” and “stability.” Anti-reformers are already saying that the amendments they seek will “reconcile” the country.

“Reconciliation” is a code word for “impunity” and the “status quo.” “Negotiations” is language for “stalling” for time to “water down” the constitution to “claw back” its reform provisions. “Stability” is a “threat” by the “Reds” that they could unleash violence and “ethnic clashes”.

This is what in the English language is called “blackmail” although I don’t know why everything bad in English has to be “black”.

But I digress. My point is that the “Reds” are master manipulators. They will leave no stone unturned to kill the constitution.

Anti-reformers believe that the new constitution poses an existential threat to them. They fear the new law will make them extinct.

You know what? They are damn right! The purpose of the new constitution is to “drain the swamp” of the crocodiles and other malignant reptilian creatures.

We know why they don’t like the provisions on land. They will lose it if it was ill-gotten, or they are simply hogging it when millions are landless.

The new devolution structure denies them large tribal catchment bases from which to bargain for personal power and corruptly amass individual wealth.

They don’t like kadhi courts because they are religious bigots. They oppose abortion because they are misogynists.

You get the point. It shocks me that anti-reformers think that progressives would agree to the amendments they want to force down our throats.

What, then, would have been the purpose of the referendum? Wasn’t the referendum meant to let the electorate settle the “contentious issues”? Didn’t the voters do just that on August 4?

But the “Reds” are saying that “it’s their way or the highway”. They want to impose the dictatorship of the minority on the majority. They want to achieve through manipulation, threats, and skullduggery what they failed to obtain at the ballot box.

They couldn’t convince Wanjiku, and now want to use their access to the privileged corridors of power to subvert the will of the people.

We remember well what happened in 2002 when Narc booted Kanu out of power on a platform of reform. The people were ecstatic. But the networks of corruption and anti-reform found their way back to the inner sanctum of power.

Those who had tormented Kenyans for over two decades escaped sanction. They kept their looted wealth. Many found their way back in government.

Impunity and corruption continued unabated. Soon, they were offering us moral lessons and lecturing Kenyans on “good governance”.

Anti-reformers are resilient. Like a deadly virus, there is no cure for them. But we can hold them accountable and prevent them from looting the State and “squatting” in public office. We can stop the abuse.

The lesson of the failed Narc dream is that an election does not reform a country. Nor does merely passing a constitution. That’s why we must immediately – and fully – implement the new constitution.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commision.