Dialogue can start with low-hanging fruit of necessary changes to Katiba
What you need to know:
- Jubilee must accept dialogue or the alternative is a referendum, Cord hardliners say. Jubilee hawks, on the other hand, argue that the election settled everything and Cord should wait for 2017.
- Although the 2010 Constitution is broadly progressive, there are sections where idealists inserted clauses which, in the real world, are not practical.
- The main law can always be improved. Issues like the percentage of funds which should go to the counties can be tackled after building confidence through amendments that are not too controversial.
Demands for dialogue are not new on the Kenyan political scene. One of the better known stories from the 1980s revolves around the Kanu firebrand Kariuki Chotara who was fed up with the near-constant university strikes.
Quite a few riots in those days were about the quality of food as meals were offered free at public universities at the time. Hearing that students were once again in the streets demanding “dialogue” with the government and university heads, Chotara asked at a public rally: Kama wanataka dialogue si wapikiwe hiyo dialogue? (If the students want “dialogue” why don’t the university authorities simply include it on the menu?)
Chotara, of course, imagined dialogue was a type of food and his statement caused a lot of hilarity, with students immediately labelling the chapatis they wanted served “dialogue”.
Today, demands for talks between the ruling coalition and the opposition are a key part of national politics.
The problem is that the case for talks has been cast in needlessly confrontational terms.
MUST ACCEPT DIALOGUE
Jubilee must accept dialogue or the alternative is a referendum, Cord hardliners say. Jubilee hawks, on the other hand, argue that the election settled everything and Cord should wait for 2017.
In this environment, it is difficult to see how any meaningful talks can be held. Yet the case for cross-party talks on a number of national issues would be easier to sell if crafted in alternative terms to the aggressive framing that has dominated debate so far.
At a recent appearance on the “Cheche” talk show on Citizen TV, for example, the TNA and ODM chairmen – Johnson Sakaja and John Mbadi – appeared to be separated by very little in terms of their substantive approach to major issues.
It is just a question of framing. One way forward would be to start by calling a convention to discuss changes to the Constitution that very few people will disagree with.
Although the 2010 Constitution is broadly progressive, there are sections where idealists inserted clauses which, in the real world, are not practical.
The demand that at least a third of MPs must be women, for example, would mean that, because the electorate is unlikely to change its attitudes overnight, hundreds of female MPs would have to be nominated so that Parliament is legally constituted.
FROZEN BY COURT
The law, which was temporarily frozen by the Supreme Court, currently reads that no organ shall be considered properly constituted if more than two-thirds of members are of one gender.
Whether voters can afford to pay the salaries of hundreds more MPs to fill this quota is open to question.
More broadly, issues aimed at cutting the cost of implementing the Constitution, including merging some commissions, can attract consensus.
What, for example, is the role of deputy governors? Such positions could be scrapped and the money spent on their perks put to better use.
Making changes to the Constitution often draws the opposition of “originalists” who insist that the Katiba is sacred.
But, in practical terms, as Benjamin Franklin observed when the American constitution was endorsed, a draft constitution is often an imperfect document which can always be improved. The text of a primary school book published in 1930 to educate children about the constitution read, simply:
“This constitution is yours, boys and girls of America, to cherish and to obey, to preserve and, if need be, to better.”
ALWAYS BE IMPROVED
The main law can always be improved. Issues like the percentage of funds which should go to the counties can be tackled after building confidence through amendments that are not too controversial.
(My view is that one of the biggest failures of the new order is the technocratic cabinet. The first Narc cabinet was hugely successful because, in contrast to the timid paper pushers in the cabinet now, political figures such as Kituyi, Maitha, Michuki, Raila, Ngilu, Mwiraria, Karua and Nyong’o had the confidence to implement big changes without constantly looking over their shoulders).
A convention of Kenyans to discuss tweaking the supreme law especially with regard to clauses that do not require a referendum can provide the basis for a dialogue which can then be followed by subsequent talks about more controversial issues.
