Our Constitution owes its birth to post-election violence

What you need to know:

When it comes to constitutions, the mother and child cannot co-exist – the mother must die so as to give way to the child.


Barely a week ago, we marked the fifth anniversary of the Kenyan Constitution since its promulgation on August 27, 2010.

It is a good time to consider the promise we gave to our posterity and ourselves before the Constitution gets too old.  

Constitutions are like human beings. They are conceived and born, though sometimes they are killed or simply die before seeing the light of the day.

They need to be fed and nurtured. They start walking, talking, and later, fighting and lying.

They sometimes pervert themselves or are perverted by brutal utilitarians. They marry, have children and finally die, giving way to new generations of constitutions that represent a new sunrise in society.

'THE KENYA WE WANT'

This cycle repeats itself, again and again. Unfortunately, the mother and child cannot coexist – the mother must die so as to give way to the child.

The present Constitution is a child of our independence constitution. The tragedy with the 1963 Constitution was the dramatic changes it underwent; numerous sessions of plastic surgery, each of which was supposedly aimed at adding more beauty.

The result was a complete change of face. At the time of its death, it was full of blotches that spoke of these lamentable procedures and completely drained of its natural appeal.

So much for beauty, let us turn to the ugly scene. The 2010 Constitution was conceived amidst these surgical procedures occasioned on its mother’s face. Following the 1992 general elections, a number of groups joined hands to spearhead the drafting of a model Constitution dubbed Kenya Tuitakayo (The Kenya We Want). Kenya Tuitakayo was a model of beauty in portrait which became an important lobbying tool in the quest for constitutional reforms.

The lobbying involved civil society, religious groups, political parties, human rights groups among others. In January 1995, President Moi announced that a new constitution was forthcoming .

This was more of a promise rather than a commitment. However, this promise set into motion irreversible social changes. In light of the apparent government inertia, the opposition parties agreed on a number of minimum reforms through the Inter Parties Parliamentary Group (IPPG).

WAKI COMMISSION

These reforms were included in the Constitutional Review Bill that was negotiated solely between the government and the IPPG, to the exclusion of civil society. It was soon recognised that absent wide public participation in the review process would lead to a childless marriage.

The Ufungamano Initiative fuelled the pressure on the government to increase the participation in the Constitutional of Kenya Review Commission (CKRC), one of the midwifes in the extensive labour period.

What follows is a history of push and pull, a tussle between political leaders and lobbyists and contestations over the structure of the executive and the role of the judiciary. These processes led to the Bomas Draft, Naivasha Draft and Kilifi Draft, named after the situations of their respective conferences.  

On November 21, 2005, a referendum was held for the proposed new Constitution and the populace determined that it was not yet time for its birth. We had to wait to the dramatic and painful labour pains of the post-election violence for the flame of constitutional reform to be rekindled.

This became a focal point for the Waki Commission established in light of the 2007-2008 violence. In February 2009, the drafters were at the drawing board again, this time under the name of Committee of Experts (COE).

The same Bomas document was practically re-cooked by the COE – in letter and spirit. The draft was taken to the vote in 2010 resulting in an overwhelming majority.  

Days later, the birth of the supreme law took place. The maternity ward was Uhuru Park, and the midwives were Mwai Kibaki and Raila Odinga. The Constitution conceived more than a decade earlier had been finally born.

It was nurtured for two and half years until the March 2013 elections and started walking with devolution. It ought to be ready to fight for itself as the Constitutional Implementation Commission, its nanny, nears her retirement, but full implementation is yet to be achieved.

Lying will come about the day we forget the constitutional spirit and start changing it for short-sighted political gains - the day we forget the judiciary, the role of the independent commissions, the distinct roles of the arms of government, the integrity of the Bill of Rights and the rule of law, no matter how annoying these may be.

NOT JUST ATHLETICS

The constitution of Kenya will change with time. It will grow and mature. But it has a purpose in life before dying. It must communicate our ideals to posterity and retain its beauty unaltered. It must guide our progress and determination to remain indomitable not only in athletics, but also in human and socio-economic development.

Our five-year-old toddler may stumble before reaching adulthood but we must guide its feeble steps. That is the only way we can escape the anger future generations will place on us if we change the constitution for short interests or political gain. 

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi