Lesson one in oranges and bananas: Listen to the People

On November 21 Kenyans went to the polls to vote 'Yes' or 'No' to a new constitution. When the final results were announced the 'No' vote represented by an orange on the ballot paper trounced the 'Yes' vote characterized by a banana. The draft charter of the constitution being voted over had been the subject of bitter divisions in the country in the lead up to the vote. Maina Kiai from the Kenyan Human Rights Commission reflects on the lessons learnt from the referendum. He writes that Kenyans have clearly shown that they believe in the right to vote as a way of making decisions and that once again voters have firmly rejected the culture of Moism - characterized by patronage and divide and rule tactics. Kenya's politicians should take notice of the vote and listen to the people, he says.

The people's verdict in rejecting, ostensibly, the draft constitution is more than clear. I say "ostensibly" because I am not convinced that voters were voting only on the merits or demerits of the draft. Indeed, I would guess that quite a significant number were expressing their views much more on the other issues that have dominated the processes since the Bomas meeting as far back as 2003, than on the substance of the document. These issues included the sense of protecting our own; sending a protest message; unhappiness with the process; use of state resources; presence of perceived corrupt people in the cabinet; arrogance of the small clique in power; and exclusion of most Kenyans from the "warmth" of power.

Moreover, the one-month period for civic education was plainly inadequate to reach the millions of Kenyans, and the political class - on both sides - hijacked the process. Since Bomas, the issues have been more about politics, power, ethnicity, revenge and protection of old and new corruption, than about delivering a new constitution. And it has been about controlling the process, leading to the birth of a new constitution for Kenya, with both sides doing whatever they can to thwart the other's purported (and real) control of the different processes that emerged since 2003.

Of course there are real issues of substance dividing both sides, but way beyond these issues, is the question of control of the process that leads to the final document. This is on the basis that whoever controls the process will get what they want in the final document without the need for compromise and negotiations. And it is in this sphere that the political class - on both sides - outwits us all in being able to then sell their personal views as views of communities.

It has been argued previously that it is critical to remove the process and control the issue from the table so that we can genuinely discuss a draft without too much politics, and also giving time to genuine and expansive civic education on substance rather than politics. Could it be, for instance, that the 30,217 people in Tetu constituency who voted 'Yes' were all convinced on the substance of the document, as opposed to the 255 who voted 'No'? Or that the 29,974 people in Nyando who voted 'No' all disagreed with the merits of the entire document, as opposed to the 260 who voted 'Yes'?

These margins reflect more a "protection" and "our own" mentality than anything else, for even in the closest of families, there are always real divisions and difference of opinions on fundamental issues and the only way to overcome these differences is to project a need for togetherness as protection against a larger outside enemy. And in our referendum, the tribe and its perceived interests, and power swamped the contents of the draft.

Given the control factors and processes that led to the Wako Draft, it was not surprising that politics topped the agenda.

It was in this context that the Kenya National Commission on Human Rights spent considerable time and energy with various political actors, advocating a formula on the process that would not be controlled by either side. We argued that the political class needed to accept that the country was divided and that there was virtually no Kenyan who would not be perceived, rightly or wrongly, to be supporting one side or the other; and that therefore the only possible way to move from process issues and into content was to get five to seven eminent, credible, distinguished African constitutional law experts who are above reproach, to then craft a draft from the various views and existing drafts that exist in the country. This would include the collation of views by the Ghai Commission, the Ghai, Bomas, Ufungamano, Law Society of Kenya and the Federation of Women Lawyers (Fida) drafts to mention a few.

We were clear that we needed credible African experts who understand the African reality well, but who were also above Kenyan political control. And to ensure that no one said they were "appointed" by one side or the other, and that there was an accountability mechanism for these experts, we suggested that we approach Archbishop Desmond Tutu, or former South African president Nelson Mandela, and ask them to select the experts. Unfortunately our pleas fell on deaf ears all round.

I believe that the referendum outcome vindicates this approach and by rejecting the draft, we now have another opportunity to reconsider it. The key to building bridges lies not in the actual substance of any draft constitution; it lies in the process and the confidence around the process that we can generate. That way, we can then have debates on the contents without politics and power games, knowing that we can never all agree on the substance but at least this would ensure that we have a proper debate without politics and power intervening.

It will be tempting for the 'No' side, composed of Kenyan politicians, to interpret the vote as a mandate for them to lead and direct the process for a new constitution. This will be the road to ruin in as much as the Kiraitu approach led to ruin.

There are also other lessons that we can draw from this exercise to guide us into the future and bind us together. Important among them is that Kenyans have shown that they firmly believe in the right to vote as an indispensable tool in making decisions, or to send messages to the political class. I was very impressed by the calm and maturity exhibited by voters - in contradiction to the politicians. Even in areas where there were clear divergent views, the level of respect for the other side was overwhelming. This, despite the best efforts of politicians to incite violence and ethnic hatred; inflame passions; and raise our emotions. Clearly, our leaders have some lessons to learn from us, and we should now increase the pressure on them to start listening to us, rather than vice versa. This means that we, the public, must start holding our leaders accountable for breaking the law in trying to incite us to violence; hold them accountable for the misuse of state resources; and reject attempts to excite ethnic hatred through hate speech, for a start.

A third key lesson is that Kenyans, yet again after December 2002, rejected firmly the culture of Moism that has pervaded the political class in the country. This is the culture of patronage, the culture that views state resources as personal, the culture of divide and rule. This is the culture of decision-making by a small kitchen cabinet on the basis of their personal, not national, interests. It is the culture of arrogance and forcing issues down our throats, without the courtesy of explaining, simply because the State machinery is in their hands. And it is the culture of handouts as though money is the only thing that matters to us all. After a reasonable start in January 2003, and for about a year, key players in the Kibaki regime reverted to Moism as a way to maintain themselves in power, forgetting the reform promises they had made. Well, the voters have reminded us all - and I hope the victorious 'No' side learns this - that Moism is not just about Daniel Moi as a person: It is about a way of governing that is not only disrespectful, but also selfish, and cliquish.

I also draw the lesson that Kenyans want far more bolder and deeper reforms than have been carried out so far. In the early days of this regime, the support for reforms was amazing, and the bolder the better. It is time for the government to get back on this track. That must mean a complete "zero-tolerance" to corruption; a sweeping of the civil service including the retiring of those public servants - no matter how good - who have reached retirement age. With 65 per cent of the population being under the age of 30, few things affect the image of the government than its reliance on "old" men, when what it needs is energy.

It also means revamping the police to make it friendly not fearful; working to change attitudes in the public service; focusing more on delivery and accessibility; and bringing in more and competent women reflecting the face of the country, to high positions of governance. This necessarily means bringing in people from outside the government to serve (as public service should) from the private sector and civil society.

More reforms must also include more transparency and accountability to the people of Kenya. Nothing, for example, prohibits various politicians, government departments and agencies from holding public accountability forums where they submit their records to public scrutiny over and above the accountability to parliament. There are many questions that many of us still have from the referendum that we would like answered. For instance, how much was actually spent by the two sides in the campaigns? And where did the funds come from, outside the veil of "well-wishers"? Honesty in answering these questions will perhaps begin building some bridges between us the people and the political class on both sides.

The people of this country have many things to say, some good and some bad. They need to be listened to, even if one does not agree with them, and no matter how painful.

* Maina Kiai is the chairman of the Kenya National Human Rights Commission.

* Please send comments to [email protected]

* Read the report 'How and Where the Cause of Justice was Defeated in the Referendum Draft Constitution of 2005' for background information on the referendum.
http://www.mazinst.org/referendumdraft.html