Day 215 (Final Reflections on the Proposed Constitution)

Mood: Calm

Mode: En faisant le bilan

Thoughts:

My name is N.V and I am citizen of Kenya. These are my final reflections on the eve of the August 4th 2010 Referendum on the Proposed Constitution of Kenya.

The quest for Kenya’s new constitution has polarized society to the extent that even usually neutral institutions such as the media and religious society have become partisan. These institutions would ordinarily serve as arbiters when society is embroiled in conflict. For the past three months in a row, the constitution has been Kenya’s most debated subject to the point where it overshadowed the just concluded World Cup tournament in South Africa.

Sadly, this constitutional debate has been reduced into a contest of Greens and Reds on a handful of contentious issues which have been conveniently isolated from the contents of the draft constitution as a whole. This minimalist approach to constitution making has overshadowed the strong and sound fundamentals that underlie this proposed constitution. Let us rise above academic, moral, political debates over the few contentious issues dividing us and look at this constitutional process as a whole. Shall we? Why did Kenyans spill blood, break limbs, get detained or even maimed? The real struggle for a new constitution has been to strengthen and protect human rights and good governance; achieve government accountability; facilitate generational and gender equity; promote and safeguard separation of powers; foster open politics; establish a high quality civil service capable of administering government policy effectively and impartially; address corruption broadly; foster an open and productive debate between government and civil society; and enhance economic transformation and social justice and access fair and quick justice for all.
My dear friends and fellow colleagues, we have reached the proverbial crossroads: Tomorrow, we will all be going to the polls to vote whether we accept or reject the proposed constitution of Kenya. It is unprecedented for any country of the world to have had one let alone two constitutional referendums, not to mention being the most expensive and longest review process in post World War II history. And the results? Nothing yet. But as Kenyans we have still yearned ever so patiently for a new Constitution. Why? Two reasons: we wanted and still want the best possible constitution in the world; one that would defend individual rights and freedoms while at the same time safeguarding national interests and secondly, Kenyans wanted to be involved in the constitution-making process. We wanted a constitution we can own and call our own. And I agree that “owning” this constitution lies in healthy disagreement and robust debate, which in our case has led to the formation of the Yes and No camps. But this is not a winner-takes-all contest since we are all Kenyans and our primary objective should be to move Kenya not for our personal benefit but for the greater good of this and the coming generations.

A few years back, a writer by the name of Lev Grossman published an article entitled ‘Forward Thinking’ in which he said: “Albert Einstein, in 1932 remarked that ‘there is not the slightest indication that nuclear energy will ever be obtainable ….. Thomas Edison thought alternating current would be a waste of time…. Franklin Delano Roosevelt once predicted when he was Assistant Secretary of US Navy that airplanes would not be useful in the battle against a fleet of ships…. In 1883, Lord Kelvin, President of the Royal Society and no mean scientist predicted that ‘X-Ray will prove to be a hoax.” To all this Grossman concluded that “there is nothing like a passage of time to make the world’s smartest people to look like complete idiots.” Borrowing from Levy’s wisdom, I am of the view that those who are opposed to the proposed constitution may think that they are the smartest people but time could prove them ‘complete idiots’.

As Kenyans, we know that a constitution will not magically solve all the contentious political problems of this country. But it will provide a shared spirit and framework for re-structuring and re-organising our politics, economy and society in a democratic and just manner. Our new proposed constitution will therefore become a focal point on which political leaders can develop a political culture, which enlivens and fosters integrity. A constitution will not establish constitutionalism. A constitutional culture and a prudent constitutional jurisprudence (in which the three branches of Government, lawyers, academics, citizens, the civil society, among others understand their respective roles) establishes constitutionalism.
A “good” constitution is not drafted; its hopes and aspirations are not in its elegant and spotless phraseology. A good constitution is lived and experienced; its strengths and hopes are in its interpretation and jurisprudence.

I am afraid that Kenyans will be searching for a perfect constitution for a long, long time unless they realize the simple truth that consensus-building on every single contentious issue is an exercise in futility.

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