I am relieved that after so many years, we finally have a new Constitution that expresses our aspirations and hopes as a modern Kenyan state. I am resisting euphoria, even in my happiness and relief. I have seen--much too closely--similar moments of hope and joy in our history that were dashed quickly by the political class.
For me, the passage of this constitution is personal. On setting up the NGO Kenya Human Rights Commission in 1992, it quickly became obvious that the human rights violations we were denouncing and challenging had a basis in a constitution that was intrinsically repressive. There was little chance of change and respect for ordinary Kenyans within that framework that allowed the President to do whatever he wanted, whenever he wanted. As our 1993 report “Independence without Freedom” asserted, Kenya was basically a colonial state, with laws, structures and attitudes that were exactly the same as those that governed the country from 1920 to 1963. The only thing that had changed was the color of the skin of those doing the repression and corruption, but it was just the same. To enjoy human rights, it was necessary to change the structure, reasoning and functions of the state. And that demanded constitutional change.
So in 1994 through to 1995, KHRC initiated a process that culminated in the publication of The Proposal for a Model Constitution, a joint effort with the Law Society of Kenya and the International Commission of Jurists (Kenya Section.) The objective was to show Kenyans and especially the political class that it was not rocket science to make a new idealistic and modern constitution. The other key objective was to provide a basis for citizen education and awareness by providing an example of “what could be.” From there, the Citizens Coalition for Constitutional Change (4Cs) took off, and from there, the National Convention Executive Committee (NCEC) was borne. By 1997, “Katiba” was a common word in Kenya, despite insults from Daniel Moi who would often ask if Katiba could be eaten. But we persisted and the rest as they say is history.
It has been a long road. A painful road. But finally we can say it was worth it. And it’s always been about putting Kenyans at the center of the state and the country, unlike the outgoing constitution that places the Presidency at the center. It is a struggle that was initiated and driven by non-politician Kenyans, in the main. It is a process that is about empowering ordinary Kenyans to be the masters, not servants of politicians. It is about providing the space and tools for ordinary Kenyans to challenge power and to speak truth to power. These tasks continue even after passing the constitution.
Along the way, and especially after politicians on both sides took over the initiative with the IPPG reforms, ordinary Kenyans have not been at the center of this struggle. There are lots of reasons for this, but also lots of lessons for us that we need to learn and internalize as we get to the implementation stage of the new Constitution. Yash Ghai did a great job to return Kenyans to the center, and the Committee of Experts must be commended for taking its role as custodians of the public interest seriously, especially in the face of serious opposition and challenges from the political class.
So as we celebrate, as we should, we also need to remember. We must pay homage to those who lost their lives in the struggles starting as far back as 1966, challenging power. We pay our respects to those who were crippled in protests in 1990 through to 1998. And we make special mention of people like the late Chris Mulei of the ICK-Kenya who was pivotal as far back as the drafting of the Proposal for a Model Constitution through to the 4Cs and NCEC. This is his victory as much as anyone else's.
And we need to focus now. At the top-down levels that require people of integrity, competence and character in the various organs, for we have learned that we can’t have reform without reformers. And also at the bottom up levels that seek to empower more ordinary Kenyans to challenge their leaders and hold them accountable.
This second bottom up task is urgent. For whatever reasons, the patterns of this vote largely reflected, yet again, what we have seen since 1992: Voters aligning around their ethnic political leadership. It could be that many voters actually read the draft and made a decision, but it is rather suspicious that there were so few votes in Nyanza that went against Raila Odinga’s choice. Or in Western, against Musalia Mudavadi; or Kalenjin, against Daniel Moi and William Ruto; or Kikuyu against Mwai Kibaki. Of course it could be that the leaders simply read the mood in “their strongholds” and campaigned on those lines, but somehow I am not so sure especially as there was a clear and loud shift among Kikuyu voters once Kibaki came out strongly.
So while I am happy the draft was approved by voters (and kudos to the IIEC for a job really well done), I am painfully aware that the journey has just started and we must not lower our guard. Ever again. The time to roll up our sleeves is now!
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