Kenya could borrow, and discard, from Nigeria's constitution making

Thursday December 03 2009

Members of the public with a copy of the Harmonised Draft Constitution during its official launch. FILE

It is a season of political pottery in “pro-democracy” Africa and Nigerians must hold a record in this form of art.

Out of every ten efforts of crafting new and suitable constitutions in Africa, nine took place in Nigeria.

Military regimes led the way in this business. Between the murderous military coup of 1966 and the three year civil war (1967 -1970), the generals pulled in willing constitutional lawyers, crafty civilian bureaucrats and politicians to have them carve up Nigeria’s federated three regions into a total patchwork of 37 states. Out of exasperation and exhaustion (with often selfish governance by politicians), came outbursts of energy for constitutional engineering.

This exhaustion and the urge to multiply arenas for wielding power ---read states-- seems to have also sprung out of Kenya after President Daniel Arap Moi’s harsh and contentious “nyayo” (or footsteps).

Nigeria’s 1999 Constitution introduced 774 local governments as the lowest level of power. Kenya’s draft constitution, released to the public on November 17, 2009, named in First Schedule (Article 5(2), an already existing total of 222 counties as lowest levels of administration. There is a promise of new ones being created but more interest seemed to lie in burying ancient titles like provincial commissioners, district officers and chiefs. These are associated with colonial dictatorships which Presidents Jomo Kenyatta and Moi seem to have cherished.

PCs have been recast as regional directors while counties have grabbed the ceremonial colonial power pinnacle of governor.


The Nigerian record does have a vital lesson here. It shows that direct voting for chairmen and councillors of local governments have brought little material and moral benefits to the voters.

Although the period between 1999 and 20007 saw President Obasanjo’s regime pouring huge sums of money to local governments, corruption grabbed most of it down throats that knew no end.

Military and colonial whips and their silencing of the people from 1900 to 1999, had not trained in the mass citizens habits and reflexes of shouting “stop thief” at elected officials who turned into unarmed robbers. As a mark of exasperation, the Yar’Adua government has promised fire and tears to corrupt local government officials. One can only hope that Kenya’s anti-corruption warriors will put active hooks in the waters of democracy at the grassroots level to catch the small fry before graduating to sharks of corruption.

The Kenyan 2009 Draft is far ahead of Nigeria in seeking to promote the entry of women into legislatures and executive posts at this level. Article 125 (1) (a) and (b), however, send alarming signals.

Elections to Regional Assemblies show loss of trust in the direct voice of the voters and gives voting power exclusively to “elected members of the county assemblies in each region acting as electoral colleges”.

In Nigeria this strategy was used by an unholy alliance between local feudal rulers and the British colonial government to shut out candidates like bicycle repairers, barbers, tailors and small retail traders who had defeated local sons of oppressive Emirs (chiefs) and their officials.

It is an unholy legacy which puts women candidates (who tend to have little money for contesting elections, including bribing party bosses), at dreadful disadvantages. If the spectre that national-level politicians fear is that of too many officials (those elected to regional and county assemblies), learning the ropes of reaping votes from grassroots voters, this proposed cure diminishes chances of women winning elections with greater transparency; and getting soiled by corruption and bribery.

There are other common fears. Article 187 in the Kenya 2009 British parliamentarians enjoy for ensuring accountability by ministers and their prime minister, namely “Question Time” during which MPs, particularly the opposition, puncture holes into brains and egos of ministers with the use of “supplementary questions” to those provided in writing in advance.

The merit of “Question Time” is in training sharp wits in both the cabinet and their opposition enemies. With it the politician goes to war as a learning ecology; and the media love to harvest its casualties.

Nigeria’s politicians probably dodged a tradition (whose best practitioners in the British parliament were trained in the rough debating clubs of Oxford University), because they lacked such an infrastructure. The lesson for Kenya’s political engineers may be the need to link adult political practices to skills invested in the country’s educational institutions.

Article 188 in the Kenya 2009 Draft also shares with Nigeria that imperial American tradition of seeing the “State President” as royalty who should not routinely be seen debating government policies with brawling cabinet members. This tradition was attractive to Nigerians who in their ancient traditions valued monarchs; monarchs who wouldn’t shout and eat in public. And like Ancient Egyptian Pharaohs, to whom some Nigerian fiefdoms trace their ancestry, the president should be sheltered from arrows in eyes of the public when doing undignified things like sitting down and standing up from their seats.

Accordingly, it could be argued that Nigeria’s first parliament (1960 -1965), killed politics because the more educated southern members of the opposition political parties subjected northern ministers and parliamentarians to brutal intellectual harassment. The example of the American monarchical and distant presidency was attractive to those, who in 1978, built the new road to power by President Shehu Shagari (1979-1983). Shagari was an aristocrat from Sokoto in the north-west and had served in the cabinet of Prime Minister Abubakar Tafawa Balewa.

Kenya came from a tradition of cruel colonial racial aristocracy, headed by a Governor General who was distant. His immediate successor to power was Jomo Kenyatta. In 1967 Kenyatta told a British newspaper that he planned to create a local aristocracy in Kenya because it had ensured stability in British politics. Recent historical journalism published in the Daily Nation shows that Kenyatta used land to create that aristocracy. It is a tradition which Oginga Odinga and Bildad Kaggia’s Kenya People’s Union, KPU, had threatened to upset. There may be echoes here of that cherished and wished “sound of silence”. One way out of it may be to have the State President shooting the breeze with the Cabinet at least once a month with the Cabinet. It would open a predictable window for him to share his vision; and hear other visions.

One thing Kenyans could usefully tease out from Nigeria’s constitutional memory is that of holding onto the wisdom of their power ancestors.

Nigerians hold onto a sacred power tribe which consists of former living presidents and Heads of State, Presidents of the Senate, speakers of the House of Representatives and Chief Justices of the federation to constitute what is called the National Council of State. The council is joined by current governors of States (the equivalent of Regional Directors in Kenya’s Draft), in their exhibition of the wisdom of elders.

With a rich history of military coups and subsequent refrains from killing ousted rulers following the notorious slaughters of January 15, 1966 and February 13, 1976, Nigeria has little problem filling a conference hall which these halloed elders.

Kenya may have only one living former President. Even when Mwai Kibaki leaves office, Kenya will have only two compared to Nigeria’s six.

Recalling frantic efforts made by civil society groups in Nairobi to find voices that would bring restraint to boiling tempers as the violence that hit Kenya after the 2007 elections rolled on, there may be good reason to take a deep look at this Nigerian experience.

Both Nigeria and Kenya have shared the tendency to define “national security” in terms of military weapons. Articles 280 and 282, Kenya’s Draft Constitution of 2009 exclude the country’s Governor of the Central Bank and the ministers of finance, agriculture, health, industry and trade from membership of the proposed National Security Council.

A guess would catch the Committee of Experts falling into the deep hole of not seeing Kenya’s economic strength and the prosperity of the masses of her citizens as tools for national security. Yet, examples of HIV and Aids and swine flue (as products of biological manipulations of genes as effective weapons of undeclared war), do send vital signals which cannot be ignored by Kenya waving armoured tanks and helicopter gunships.

Likewise, sharing Nigeria’s failure to create a national Oceanographic Commission into the constitution ignores the historic role that the Indian Ocean and the Atlantic Oceans have written in the legacy of freedom, independence and human dignity in Africa’s international relations.

Okello Oculi writes on African issues from Abuja, Nigeria

Africa Insight is an initiative of the Nation Media Group’s Africa Media Network Project.