Will Kenya ever conclude its constitutional reform process?

It would have, I suppose, been too much to hope for. That the Committee of Experts (CoE) charged with determining options to resolve the so-called ‘contentious issues’ with respect to constitutional reforms would be allowed to proceed with their work unhindered. This is Kenya, after all. And, in Kenya, nothing that could be simple and straightforward ever is. And too, this is our Constitution. Around which no less than two decades of struggles to advance democratic space have revolved.

Two questions must be answered. First, why are so many seemingly disparate groups unhappy with the CoE? Second, and more importantly, will their unhappiness, combined, perhaps unwittingly play into the hands of those determined not to enable the fundamental re-structuring of power that we need?

As to the first question, let us start with the most vocal of protesters. A significant section of civil society seems to believe that the CoE has not been ‘consultative’ enough – and seeks further influence, through ‘representation’ – to amend the situation. I put ‘consultative’ and ‘representation’ in inverted commas because I, for one, am becoming increasingly tired of the abuse and misuse of these terms.

Just as ‘participation’ has been reduced to the dreaded (by me) and apparently now unavoidable use of ‘working groups’ in meetings, ‘consultation’ has been reduced to two elements in Kenya. Actual physical presence – in this case, the possibility of being able to see and touch the CoE. And uncontested take up of concerns – in this case, whatever is said when being seen by the CoE. Hence the call for ‘representation’ – in this case, ensuring that a person is by the CoE at all times to defend, rigidly (not negotiate) whatever it is that needs to be said.

This is, of course, rubbish. We selected ‘experts’ (another badly abused and misused term) on the basis of their ‘expertise’ – in this case, knowledge of constitutional law from both Kenya and elsewhere. And, on this CoE sit some of Africa’s best in this respect. They cannot meet physically with every Kenyan with an interest in the process. Neither can every Kenyan with an interest in the process follow them around to ensure they do their bidding. Hence the CoE’s decision to ‘consult’ through calls for written submissions on whatever Kenyans considered to be ‘contentious.’ And hence the use of their ‘expertise’ to determine what, from what was submitted really is ‘contentious.’ Their job and mandate is not simply to parrot back to us the full list of what was submitted. It is to use their ‘expertise’ to negotiate interests, which sometimes contradict but sometimes can be resolved, and thus present to us a pared down version of what, in their determination, actually needs fundamental discussion.

Which is what they did. And they then called for further written submissions on how, in the views of Kenyans, those ‘contentious issues’ could and should be resolved. With the implicit understanding, again, that their ‘expertise’ would be brought to bear in assessing those proposals so as to prepare viable options for the Parliamentary Select Committee to consider.

In my view, therefore, they have ‘consulted’ – and I personally do not feel that I was not ‘represented’ because the organisation I work for responded to both calls. This is not the colonial era and the country cannot be run by barazas alone. Which is not to say that barazas do not still play important roles in enabling communication between the administration and the people – they do, for reasons as obvious as the literacy levels in this country. But the work of extracting people’s concerns through barazas was done well before the CoE began its work.

As for the other protesters, the fundamentalist Christian right is hell-bent (a word deliberately chosen) on being its usual ignorant and intolerant self – abortion is murder, gays are evil incarnate and the Kadhis’ Courts are a blatant attempt to impose Sharia on the country. I think we can ignore their ranting and raving – which is indicative of a complete misunderstanding of Christ’s teachings. The Ministry of Justice is worriedly wringing its hands because it sits too close to the endless machinations of the Executive and parliament. The Parliamentary Select Committee is feeling slighted – like the CoE, by quietly getting on with its work, has somehow usurped its role. And the Executive is, as usual, pulling in all kinds of different directions, all with an eye to 2012.

Which brings me to the second question. Which is whether or not all of this unhappiness will somehow combine so as to defeat and derail this latest effort to finally conclude our constitutional reform process. My conclusion? It could. Very easily. For interests that are really about succession – and what powers will be available post-2012, all of this moaning and muttering is bound to be used to legitimise another stalling of the constitutional reform process. None of us have actually seen what the CoE has prepared to date. Or the options it is presenting to the Parliamentary Select Committee, which does, in fact, retain the power to determine which of those options to carry forward for us all. We need therefore to think about the possible implications of the moaning and muttering – the bigger picture – and find more constructive and useful ways of expressing it, without derailing this latest chance. The country is bigger than us all. The country demands it.

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* This article first appeared in The East African.
* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at Pambazuka News.