OBBO: When soldiers make big law - Daily Nation

When soldiers make big law; Burma vs Kenya

Wednesday April 14 2010


With the passage of the draft constitution in Parliament, and most of the political class seemingly agreed to campaign for it in the referendum, Kenya has come very close to finally putting this matter to bed.

A section of church leaders are opposed to the draft, mainly because it retains the kadhi courts, and also because they believe it’s cleverly trying to legalise abortion. They have sworn to campaign against it.

That will be something, with priests and bishops on one side holding rallies to urge a “No” vote, and the politicians on the other pushing for a “Yes” vote. It is a high stakes game for the churches.

Because they have not recovered from the alleged complicity of some of the church leaders in the 2008 post-election killings, if they go openly for a “No” vote, they cannot afford to lose.

If they do, they will be disgraced like the Catholic Church in Rwanda, which opposed the Rwanda Patriotic Army rebels, and whose leaders actively participated in the 1994 genocide.

In the end, the RPA won and is now the government. And it never allows the Catholic Church to forget that it fomented genocide. It will be decades before the Catholic Church recovers its moral authority in Rwanda.

However Kenyan politicians, like their colleagues elsewhere, can afford to lose. That is the currency of their trade. They just pick themselves up, dust themselves off, and wait for the next political fight.

Kenyan commentators and politicians also like to speak about how the nearly 20 years it has taken to get this far in the constitution making process is one of the longest in the world.

We checked, and it is not just “one of the longest”, but the longest. Until 2008, the record was held by Burma (Myanmar), which took 17 years to get its constitution.

The common explanations for why Kenya’s constitution review has taken so long are, first, lack of political will and, second, because it has a querulous multiparty system that no single group has been able to totally dominate in recent years.

However, Burma doesn’t have such “problems”. First, Senior General Than Shwe and his fellow officers are running one of the most repressive regimes in the world.

In 1990 when the military realised that the popular opposition was going to win the 1991 elections, they placed her under house arrest — where she remains 20 years later.

DESPITE THE DETENTION AND THE fact that she was not able to campaign for her party, it still won 82 per cent of the parliamentary. There are no prizes for guessing what happened next — the military refused to recognise the results, end of story.

At about the same time, the military junta established the National Convention to write a new constitution. While Kenya and quite a few other countries in Africa had a highly consultative process, there was no such thing in Burma.

According to online news journal The Irrawady, the Burmese public was largely excluded from the constitutional drafting process. The National Convention’s proceedings were not open. Delegates who opposed the military junta’s views were expelled or silenced.

The public did not get a glimpse of the draft until weeks before the referendum, so newspapers there did not make money publishing the draft as the ones in Kenya have.

The military has a tight control of everything, including counting votes. So when the referendum on the constitution took place in May 2008, the government claimed that 98 per cent of the population turned out and 92 per cent voted in favour.

That result was very unlikely because the referendum took place soon after Cyclone Nargis devastated the Irrawaddy Delta and killed more than 138,000 people.

So after 17 years of calling the shots at every stage of the constitution making process, the soldiers still wanted to leave nothing to chance. Burma’s constitution requires more than 75 per cent of the Parliament to vote in favour of an amendment.

That cannot happen in Burma under military rule, but just in case, the junta ensured the constitution also allocated 25 per cent of the seats in Parliament to the military.

So if a fairly effective junta can take 17 years without any opposition to have its constitution, it should not be surprising that a fractious democracy would take 20 years.

And Kenya should also count its blessings. After 20 years, it has a draft that considerably expands freedoms and rights. In Burma, after 17 years all they got was heartbreak. The junta simply entrenched dictatorship.