Referendum: Governance system is the problem

Adolf Hitler gave us a blueprint of the perfect politician in Mein Kampf.

At his very best, the politician is an ethnic entrepreneur and an intellectual whore.

He is neither a charity nor does he exist for the benefit of the masses. Like you and me, he is driven solely by a profit motive, which is the benefit to oneself.

These are dangerous times as we face a constitutional reform process almost entirely controlled by politicians.

The Constitution is the base upon which society is anchored. It defines every facet of our lives and informs every activity the Republic undertakes.

It is a sacred creature whose review must be approached with uttermost sobriety. If Parliament's mutilation of the Harmonised Draft Constitution in 2010 is anything to go by, such a task cannot be left to the politicians.

KEY ELEMENTS

Among others, the Harmonised Draft contemplated a Federal-Parliamentary system of government led by a Premier, who would be answerable to Kenyans through Parliament.

Provisions on leadership and integrity directed that state officers periodically declare their wealth — which information would be published for scrutiny by citizens.

Articles 125 and 126 provided an inbuilt solution to the two-thirds gender rule in the manner in which they defined the composition of Parliament.

In the same space, it firmly placed the Senate as the Upper House while acknowledging the importance of the two Houses operating on a near equal pedestal.

Forecasting our debt problem, Article 253 stopped the national government from committing to a loan unless the terms of the transaction were made clear to and approved by Parliament.

AMENDMENT

The Finance minister was tasked with supplying information regarding total indebtedness by way of principle and interest; how the loan was spent, the provisions made for servicing the loan and the progress made in repayment.

In a parliamentary setting, failure to account would mean the resignation of the Executive.

The Harmonised Draft also prevented Parliament from awarding itself monetary favours, but MPs ensured that these laws never saw the light of day.

We are back where we started. While I am convinced that the Constitution should be amended, I am not persuaded that the process should stop at expanding the Executive as a cure for our election maladies.

Changing the document in the manner spoken of and disregarding the beauties of the Harmonised Draft and other critical aspects that seem to have bypassed the Committee of Experts will not inject the much-needed morality into our politics. The solution is cosmetic at best whilst multiplying the problems at worst.

LIBERAL DEMOCRACY

It is not the popular thing to say, but our real issue is the system of government we have chosen.

A system of government is prescribed by the Constitution. The Constitution of Kenya 2010 is Liberal Democratic — which in effect makes ours a Liberal Democratic State.

Such a Constitution is anchored on the five pillars of universal suffrage, free market, the rule of law, separation of powers and protection of minorities.

In simpler terms, Kenya is supposed to be a country where everyone is allowed to buy and sell; the four arms of government are independent of each other and the minority have their say while the majority have their way. It’s the best system of government yet.

My problem is in the application. I submit that even the best systems should be tailored to fit the societies which they govern, and that the drafters did Kenya a great disservice in failing to do so.

Autochthony is a critical ingredient of a good constitution. An autochthonous Constitution is homegrown — rooted in the native soil.

LOCALISED

While it is also true that a good law should benefit from international best practice, this should not be emphasised at the expense of homegrowness.

The good law is the one that draws from the experiences of those whose society is similar to ours and who have suffered problems akin to ours.

Law-making is not simply about compiling a book of the best laws.

It is naïve to copy a solution from a country with which we have nothing in common and expect it to be equally successful.

To paraphrase the eminent Lord Denning, one cannot transplant an English Olive from somewhere in the English city of Manchester onto the African plain and expect the plant to thrive. It will not. The conditions are not the same.

Kenya’s problem is that we have copy-pasted a system of government from societies that are not similar to ours and are now frustrated at the lack of positive results.

DIVERSITY

It is an eternal paradox amongst commentators: why can’t our democracy work as it does in the West?

Short of answers, they propose a mental shift. The inconvenient truth is that this will never come as long as the conditions that cause us to think and behave “badly” linger.

There are numerous studies to this effect. Liberal Democracy only succeeds in societies that are sufficiently homogeneous — societies dominated by one tribe, race or language or where the citizens share a socio-economic and cultural identity.

The United States, for example, is dominated by English-speaking, urban-dwelling Caucasians. Though many are immigrants, they have assimilated into a new culture.

Strong tribal bonds are alien. Political choices in such a society are individualistic. Rarely do people vote with the community in mind, which allows room for ideology politics.

PATIENCE

Ours is a highly differentiated society. We have many tribes with differing histories, cultures and languages, all existing under one flag.

Tribes emanate from families and the bonds that tie them are strong. In such a society, to expect people to vote for anyone other than their own in the name of ideology is akin to asking a man to choose between a blood brother and a stranger.

While possible, it is highly unnatural. People tend to gravitate towards those they trust, more-so when they are in competition with other groups for limited resources.

The vote here is impure, motivated by sentiment rather than thought — which in effect translates to a flawed government.

In sum, we must not forget that democracy in the West took hundreds of years to blossom into this marvel we all covet.

We would be overly optimistic to expect our Liberal Democratic Constitution, which is barely nine years old, to equally flourish.

In the meantime, we have to find a way of making the best out of the tribe rather than demonising it.

The writer is a constitutional lawyer attached to the Kenya Law Reform Commission.