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Rebirth of a nation

Saturday August 7 2010

President Mwai KIbaki and Prime Minister Raila Odinga acknowledge the passing of Kenya's new Constitution. PHOTO/ William Oeri

President Mwai KIbaki and Prime Minister Raila Odinga acknowledge the passing of Kenya's new Constitution. PHOTO/ William Oeri 

By MURITHI MUTIGA [email protected]

The 25-year-old prison officer felt a tingle of excitement when the clock struck midnight and the lights suddenly went off at the historic Uhuru Gardens.

Jomo Kenyatta, the young nation’s new Prime Minister, rose from his seat and strode in step with the Duke of Edinburgh to an elevated position 10 metres from the stage.

The flag of empire was lowered for the last time and, to strains of the young nation’s anthem, a new flag fluttered in its place when the floodlights came back on that night on December 12, 1963.

“It was an electric moment,” says Rahab Mwangi, now a businesswoman and church deacon with the Presbyterian Church of East Africa in Nairobi. “There was great excitement. When people saw the flag in the air, a big roar broke out. That is when I knew Uhuru had come at last.”

Last Wednesday morning, Mrs Mwangi was one of 9,106,285 Kenyans who lined up patiently to cast the ballot that would change Kenya forever.

Like many voters over 60, Mrs Mwangi has had the privilege of watching two new dawns unfold across the nation. Her fervent wish is that the outbreak of joy and relief that has greeted the birth of the Second Republic proves more enduring than that witnessed when Uhuru came five decades ago and Kenya became Africa’s 34th state.


It is one of the ironies of the successful referendum last week that the coverage of the event seemed more upbeat and excited abroad than in Kenya. Editorials from the UK to India to other parts of Africa that are struggling to write a constitution lavished the process with unqualified praise.

That is probably down to the unique nature of the approach taken in drafting the document that will become Kenya’s supreme law in the next few days.

Constitution-making has often been seen as the preserve of a few experts who hand their work to rulers who pass down the new law to the people.

That was partially the case in nations such as Ethiopia, Nepal, Saudi Arabia, Jordan, and Kuwait which reviewed their laws fairly recently, argues Prof Yash Pal Ghai, who with his wife Jill Cottrell and a number of other scholars is working on a comparative study of constitution review efforts around the world.

The Kenyan process was entirely different. “It was participatory right from the start. And although there are others that have taken an inclusive approach, the Kenyan process benefited from the fact it had a very clear framework in the form of the Constitution of Kenya Review Act (2000). That set out how to consult the people, how to resolve disputes and how to conduct systematic analysis of the views the people presented. Another major factor was that the process was generously funded by indigenous resources and ultimately factored in the views of the public in the final outcome.”

The way in which the proposed law attempts to swing the balance of power from the governors to the governed probably explains some of the optimism that has greeted the endorsement of the new law.

In the Kenya of the 1990s, University of Nairobi lecturer Prof Maria Nzomo could barely use her phone.

“We were followed and hounded around all the time. We thought that after the repeal of Section 2A things would get better. But the repression of the Moi state continued apace,” she says.

In the new Kenya, Prof Nzomo will have the right not only to communicate freely but to find out what information the government has gathered about her. That right is enshrined in Section 35(2) that states “every person has the right to the correction or deletion of untrue or misleading information that affects the person”.

Prof Nzomo, who returned to the country from Canada in 1982 as the first Kenyan woman to attain a PhD in political science at the height of the Kanu dictatorship, warns against complacency following the passage of the new law.

“I was elated when the results came in. This is the best thing that could have happened to this country. The real work for Kenyans starts now. Citizens must be the watchdogs of the new order so that anti-reform forces do not scuttle the process. There is need for a new round of civic education so that Kenyans know what the law says. They must jealously guard the gains they have won.”

That is a concern expressed by Prof Edward Oyugi who, with Wachira Kamonji, Al-amin Mazrui, Mukaru Ng’ang’a and Willy Mutunga, were among the early prisoners of conscience at the height of Moi-era dictatorship.

Prof Oyugi says Kenyans must be vigilant as post-referendum realignments unfold in the political class.

“The greatest enemy Kenya faces now is a familiar one. Conservative forces have repeatedly thwarted progress by forming anti-reform alliances under the guise of ‘national unity’ and ‘national reconciliation.’

Feel threatened

“That is what wiped out the gains the Mau Mau fought for. This time round, there are those agitating for changes to the document, such as the members of the ‘No’ team. There are others on the podium of victory that actually represent the status quo and feel threatened by change. Those are the players that can subvert the process.”

These warnings are necessary in a nation that has experienced too many false starts in the past. Independence was famously followed by ideological wars among the political class that swiftly descended into ethnic-based wrangling.

Those wars polarised the nation and sowed the seeds of every single major political crisis in post-independence Kenya.

The introduction of multi-partyism in 1992 sent hopes for change soaring, only for the celebrations to prove cruelly premature. Ten years later, Kenya was held up anew as an African example.

The main political players united to hand Kanu a crushing blow, becoming the first country in the region to topple a ruling party in comprehensive fashion.

Economic gains followed and under Narc, Kenya consolidated its place as Sub-Saharan Africa’s biggest non-mineral economy.

But the monster of ethnicity refused to die and the divisions that tore Narc apart directly led to the bloody post-election crisis.

That disaster set the stage for the latest round of reforms whose capstone was the newly-endorsed constitution.

There are a number of reasons to hope the new dawn will prove different. The proposed constitution is crafted in a fashion that democratises political power by putting the people at the heart of most structures of governance.

The process of implementation is one example. There are fears that MPs may sabotage the effort to pass legislation required to make the new law operational.

But such a decision will come at a high cost because the proposed constitution recommends the dissolution of Parliament if MPs fail to meet the deadlines set out in the transitional clauses of the new constitution.

According to Article 261 (5,6,7) “If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter. The High Court in determining (such a) petition may... transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted within the period specified in order, and to report the progress to the Chief Justice.

“If Parliament fails to enact (the) legislation... within the period specified in the order... the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.”

Those are some of the provisions that have fed optimism that politicians will hesitate to subvert the law due to the overwhelming mandate the new law received.

Devolution, the second chamber of Parliament, the equalisation fund and the envisioned reduction of the powers of the Treasury in allocating resources mean the people will play a greater role in governing themselves than they have since independence.

Mr Nzamba Kitonga, chairman of the Committee of Experts, says the public must be vigilant in the next few months but is confident the law is strong enough to withstand major attempts to derail it.

He says the Kenyan process was keenly watched by nations working to review their constitutions such as Zimbabwe, Zambia and Tanzania, which is attempting to redefine its ties with Zanzibar. Its success could help nudge other nations towards reforms, he says, but warns if the people do not take “political responsibility” for the implementation, most of the effort invested will be wasted.

Few have taken as much responsibility for the review effort down the years as the Rev Timothy Njoya.

On October 5, 1987, he delivered the famous sermon calling for the end of one-party rule. For his troubles, he was defrocked by the Presbyterian Church of East Africa (PCEA). He has not received a pension because in the view of the church leadership, he was retired in disgrace.

When the results came in showing a convincing ‘Yes’ victory, the Rev Njoya was beside himself with joy.

“I have given glory to God for keeping me alive to see this precious moment,” he said. “I thank the people of Kenya because they have paid me with their votes.”

The Rev Njoya, who was nearly beaten to death during the Saba Saba demonstrations where 21 people were killed by State police, says the current church leadership should back down from its demand for amendments to the new law.

At a whim

“It is interesting that the Church says they want to discuss with the government on amendments to the Constitution. But we have entered a new era where the government cannot change the law at a whim. The government is the people. The people voted to retain kadhi courts. You can’t remove them by talking to the ‘government.’

“To change the abortion laws you must go and discuss with the women whose lives may be in danger during pregnancy. State House is no longer the seat of government. Government is in all of Kenyans’ homes and the Church needs civic education to understand this.” It is difficult to begrudge the heroes of liberation their optimism but history sounds a note of caution.

The Daily Nation reporter at the independence celebrations in December 1963 captured the unspeakable optimism that greeted Uhuru. Being heavy with child was no barrier to attendance, he wrote. Five babies were born at a temporary hospital set up by the Red Cross at the nearby army barracks as the ceremony unfolded.

The Uhuru edition of the Nation carried a signed note by Mr Kenyatta. “Today marks the beginning of a new period in our history and of a new challenge,” he wrote.

“The tasks before ‘us now are many. One of the most important is to create in Kenya a society to which Kenyans of all races, tribes and communities will feel proud to belong and in which everyone will be able to live and work together in peace and harmony. Let this be the aim of all of us.”

Mr Kenyatta and his generation of politicians failed to deliver on that promise. Forty seven years on, President Kibaki and PM Odinga made almost the exact same pledge after the ‘Yes’ victory.

Our shield

The new constitution, Mr Kibaki said, “would be our shield and defender as we strive to conquer poverty, disease and ignorance.” It would, said Mr Odinga, help Kenyans to “unite to build the new nation together”

A wiser generation of voters chose a new start on Wednesday, one in which the people are handed significant powers to determine how they are governed.

The consensus is that the new dawn will only prove a false one if citizens repeat the mistake of the 1960s and leave the task of implementation to the politicians.