Post by miguna on Jan 15, 2006 22:07:05 GMT 3
BEFORE HEALING CAN BEGIN, LET ALL THE POISONS BE EXPOSED
By MIGUNA MIGUNA* - © 14 January 2006
The Haitians have a saying that “a constitution is made of paper but a bayonet is made of steel.” The saying implies that one should not fear “paper tigers” such as constitutions, laws or regulations. In stead, real fear must be to “things” made of “iron” or “steel” capable of causing physical or real harm and damage. In a world where this saying reigns supreme, only those who wield real coercive powers – the ones with big guns, gun ships and mortars engender fear, obedience and compliance. In such an environment, political power is obtained and kept through force. It is the kind of state that Hobbes described hundreds of years ago, in which every person is for himself or herself and where brutish self-interest is king. I sure hope that this is not the current state in Kenya.
This saying is meant to demonstrate why Haitians have only experienced constitutional abrogations, defilements and overthrows while the mighty bayonets have perpetually ruled their lives. It exposes a national cynicism towards what should otherwise be a cherished document and order in a civilized society. It might even offer some explanation why the Haitians have struggled without success to write and enforce a binding constitution that can effectively heal their gaping wounds caused by internecine civil conflicts and divisions. In stead of a unifying document, the Haitians have only known the piercing reality of sharp bayonets.
Unfortunately for the Haitians, the steel or irons from which the bayonets are made have not been used for the defense and security of the people (which ought to be their proper roles) – they have only been used as projectiles to cause massive national hemorrhage.
But it should never have been this way. Even though written on mere paper, a popular constitution should heal and unite rather than divide and destroy. For a constitution is not simply a piece of paper. The paper on which the constitution is written is but a means or vehicle through which the popular will of the people gets expressed. As the document where this sacred will is expressed, a constitution is and ought to be a revered item.
For a constitution not to be viewed as simply a piece of paper to be used, abused, discarded, torn or burnt at will, the people must have real and fundamental role and control of the process that produces it. Without both practical and meaningful participation by the people in the constitution making process, the people whom the constitution is supposed to be governed with will cynically view the end product as a piece of illegitimate paper which should not be followed, obeyed or complied with.
If a constitution is to be viewed and used as a sacred document which can serve as an effective instrument of governance, unity and healing of a people, the people must see their needs, wishes, visions and aspirations reflected in the document itself - in both the process of its construction as well as in its contents.
A constitution produced by a selfish elitist minority and imposed on an unwilling majority will – and must – ultimately be seen as a “mere piece of paper.” It is a document that cannot heal a divided society. In almost all societies, it is a document that engenders no loyalty, obedience, compliance and reverence. As the Haitians remind us, it is, in fact, a document that cannot be compared to a bayonet.
That is why Kenyans must be both suspicious and cynical about President Kibaki’s unilateral declaration that we will only have a new constitution after another protracted process is put in place by those occupying State House, Nairobi. Let’s go further and say that Kenyans must resist, by all means, Kibaki’s cynical attempt at undermining the ability of the people to write their own constitution.
The National Convention Executive Committee (NCEC) and elements within the Orange Democratic Movement (ODM) have recently publicly told Kenyans that the only way to get a new constitution in the New Year is through a Constituent Assembly process. But apart from making declarations, they have not explained in detail and to our satisfaction the costs involved, the logistics necessary, as well as the political and legal mechanisms of implementing this process. Obviously, no one has paid any close attention to the psychological, social and political ramifications of another potential constitutional debacle on the Kenyan people.
On its part, the Law Society of Kenya (LSK) has appointed a “Standing Commission” or “Committee” on the constitution review process. According to the LSK, this is just an advisory “committee” or “commission.” They insist that there is no intention on their part to usurp the constitution making powers of the sovereign people of Kenya. What we are unsure of is who the committee is supposed to “advise” on the way forward. Neither have they explained how their deliberations will be used in crafting the new constitution.
For now, we will give all these groups the benefit of the doubt and assume that they must have carefully thought through their proposals. We need to point out, however, that their “suggestions” on the way forward cannot be accepted merely on the basis of the prominence of the proponents involved.
On his part, president Kibaki’s government has vaguely called for an “all inclusive process to bring forth a constitution Kenyans want.” I am not sure what that means, particularly when we consider president Kibaki’s own dismal record on “consultations” and “all-inclusiveness.” Neither am I certain of the actual process that would bring that constitution about. President Kibaki has been cagey when it comes to actual details of the process that he has in mind. The devil, as they say, is in the details.
Kibaki’s critics have roundly condemned his latest “initiative” as just another ill-conceived or deceptive government project. Initially, the president seemed inclined to call in his favoured regime-friendly “palace experts” to prepare the new draft constitution. Kibaki’s critics had been quick to rubbish the use of selective experts as illegitimate and correctly compared it to the “process” that produced the nationally humiliated Wako Mongrel.
It is baffling why president Kibaki believes that a new constitution is only possible with the involvement of his selected experts or through a brand new review process. The manner in which he is going about it demonstrates the fact that Kibaki has once more misjudged the desires, aspirations and dedication of the Kenyan people. This is quite unfortunate, coming hot in the heels of the referendum debacle.
Both conceptually and intrinsically, there appear to be no fundamental flaw with the proposed Constituent Assembly process. Many constitutions the world over have been constructed through this path. In fact, many eminent constitutional scholars prefer this process to a few selective experts. If handled democratically, transparently and fairly, this process could be one of the most appropriate means of healing a deeply divided nation like Kenya.
But the process is as well traveled as it is littered with dangerous political potholes.
The success of a full-blown Constituent Assembly process entails that there exists a widely acceptable way of popularly choosing representatives from all sectors, interests, parties, classes and regions of the country. However, with the heightened ethnic, political, regional and sectarian interests and rivalries prevailing in the country at the moment, the Constituent Assembly process presents a gigantic conundrum to Kenyans like no others before.
In my view, absent an instantaneous resolution of the simmering differences and mistrust between our political leaders (and we cannot wish these differences away), the Constituent Assembly process, if implemented, promises to be just another prolonged, protracted and expensive process. Selecting representatives to the Constituent Assembly will simply present another forum for our battle-hardened political bulls to fight each other on. Even if we manage to get a full hall of delegates, there is no guarantee that they will agree on anything, leave alone work together up to the completion of an acceptable draft. Again, we are not told the criteria of selecting delegates and by whom. We are also unaware of whether these delegates will use the already existing views as contained in the Constitution of Kenya Review Commission (CKRC) records, whether they will unilaterally substitute their views for that of Kenyans or how they will avoid similar problems that faced the Bomas delegates. NCEC and others have not explained how politicians will be kept away from compromising the delegates.
Ultimately, it is the ordinary people that will suffer the consequences of that Constituent Assembly political bull-fight.
The suggestion by the NCEC that the so-called “political class” be excluded from the Constituent Assembly process is not only naïve to the extreme, it is impractical. Apart from apparent conceptual problems with how NCEC defines “class”, how, for instance, would anyone exclude president Kibaki and his government or the LDP from such a process? And even assuming that one could actually do it (which is highly doubtful), how legitimate would such a process be without the support or endorsement of the existing political parties and their leaders? Unless the NCEC has some hidden weapon to render our politicians and political parties irrelevant (which cannot be done effectively in a representative democracy), I do not see how useful this proposal is.
Kenyans already gave their views to the CKRC. The CKRC spent public funds and went throughout the country for months while painstakingly collecting and compiling the people’s views, which they then published. The CKRC drafts contain concise renditions of our views on the kind of constitution we want. They also compiled verbatim what Kenyans said they disliked with the current political system, process, power-arrangements and constitution.
As far as I am aware, there have been no credible controversies around these views. And despite the rumblings from those close to the Kibaki regime during and after the conclusion of the Bomas process, a legitimate constitution draft (what has been uniformly referred to as the “Bomas Draft”) was prepared and is currently available either as a resource tool or an actual draft. It captures, in both spirit and content, the type of constitution Kenyans want. It is this draft that can either be subjected to a referendum without change or it could be edited for syntax, grammar, brevity and in order to address limited specific issues.
In any event, thanks to the creativity of president Kibaki and his close confidantes, we now have as well, the Wako Draft. Although this document was popularly rejected at the referendum on November 21st, 2005, both critics and supporters have acknowledged that there were some commendable provisions in this draft. Those laudatory sections could be incorporated into the Bomas Draft by a select group of drafters equitably proposed by the major political parties, civil society organizations and professional bodies such as the LSK and the International Commission of Jurists (ICJ). The operating word here is: equitably proposed. That means no group should have more representatives than the others.
The work of this group will NOT be to DRAFT a new constitution; it will be limited to editing the existing Bomas Draft and INCORPORTING the limited changes agreed to by all the interested parties, but always in conformity to the views expressed by Kenyans in the CKRC records.
Ultimately, the all-inclusive group of drafters should also extract all the poisonous provisions (that do not conform to the views Kenyans gave to the CKRC) from both Bomas and the Wako drafts and expose these to the people. That way, the final product may create the necessary environment for national healing.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
By MIGUNA MIGUNA* - © 14 January 2006
The Haitians have a saying that “a constitution is made of paper but a bayonet is made of steel.” The saying implies that one should not fear “paper tigers” such as constitutions, laws or regulations. In stead, real fear must be to “things” made of “iron” or “steel” capable of causing physical or real harm and damage. In a world where this saying reigns supreme, only those who wield real coercive powers – the ones with big guns, gun ships and mortars engender fear, obedience and compliance. In such an environment, political power is obtained and kept through force. It is the kind of state that Hobbes described hundreds of years ago, in which every person is for himself or herself and where brutish self-interest is king. I sure hope that this is not the current state in Kenya.
This saying is meant to demonstrate why Haitians have only experienced constitutional abrogations, defilements and overthrows while the mighty bayonets have perpetually ruled their lives. It exposes a national cynicism towards what should otherwise be a cherished document and order in a civilized society. It might even offer some explanation why the Haitians have struggled without success to write and enforce a binding constitution that can effectively heal their gaping wounds caused by internecine civil conflicts and divisions. In stead of a unifying document, the Haitians have only known the piercing reality of sharp bayonets.
Unfortunately for the Haitians, the steel or irons from which the bayonets are made have not been used for the defense and security of the people (which ought to be their proper roles) – they have only been used as projectiles to cause massive national hemorrhage.
But it should never have been this way. Even though written on mere paper, a popular constitution should heal and unite rather than divide and destroy. For a constitution is not simply a piece of paper. The paper on which the constitution is written is but a means or vehicle through which the popular will of the people gets expressed. As the document where this sacred will is expressed, a constitution is and ought to be a revered item.
For a constitution not to be viewed as simply a piece of paper to be used, abused, discarded, torn or burnt at will, the people must have real and fundamental role and control of the process that produces it. Without both practical and meaningful participation by the people in the constitution making process, the people whom the constitution is supposed to be governed with will cynically view the end product as a piece of illegitimate paper which should not be followed, obeyed or complied with.
If a constitution is to be viewed and used as a sacred document which can serve as an effective instrument of governance, unity and healing of a people, the people must see their needs, wishes, visions and aspirations reflected in the document itself - in both the process of its construction as well as in its contents.
A constitution produced by a selfish elitist minority and imposed on an unwilling majority will – and must – ultimately be seen as a “mere piece of paper.” It is a document that cannot heal a divided society. In almost all societies, it is a document that engenders no loyalty, obedience, compliance and reverence. As the Haitians remind us, it is, in fact, a document that cannot be compared to a bayonet.
That is why Kenyans must be both suspicious and cynical about President Kibaki’s unilateral declaration that we will only have a new constitution after another protracted process is put in place by those occupying State House, Nairobi. Let’s go further and say that Kenyans must resist, by all means, Kibaki’s cynical attempt at undermining the ability of the people to write their own constitution.
The National Convention Executive Committee (NCEC) and elements within the Orange Democratic Movement (ODM) have recently publicly told Kenyans that the only way to get a new constitution in the New Year is through a Constituent Assembly process. But apart from making declarations, they have not explained in detail and to our satisfaction the costs involved, the logistics necessary, as well as the political and legal mechanisms of implementing this process. Obviously, no one has paid any close attention to the psychological, social and political ramifications of another potential constitutional debacle on the Kenyan people.
On its part, the Law Society of Kenya (LSK) has appointed a “Standing Commission” or “Committee” on the constitution review process. According to the LSK, this is just an advisory “committee” or “commission.” They insist that there is no intention on their part to usurp the constitution making powers of the sovereign people of Kenya. What we are unsure of is who the committee is supposed to “advise” on the way forward. Neither have they explained how their deliberations will be used in crafting the new constitution.
For now, we will give all these groups the benefit of the doubt and assume that they must have carefully thought through their proposals. We need to point out, however, that their “suggestions” on the way forward cannot be accepted merely on the basis of the prominence of the proponents involved.
On his part, president Kibaki’s government has vaguely called for an “all inclusive process to bring forth a constitution Kenyans want.” I am not sure what that means, particularly when we consider president Kibaki’s own dismal record on “consultations” and “all-inclusiveness.” Neither am I certain of the actual process that would bring that constitution about. President Kibaki has been cagey when it comes to actual details of the process that he has in mind. The devil, as they say, is in the details.
Kibaki’s critics have roundly condemned his latest “initiative” as just another ill-conceived or deceptive government project. Initially, the president seemed inclined to call in his favoured regime-friendly “palace experts” to prepare the new draft constitution. Kibaki’s critics had been quick to rubbish the use of selective experts as illegitimate and correctly compared it to the “process” that produced the nationally humiliated Wako Mongrel.
It is baffling why president Kibaki believes that a new constitution is only possible with the involvement of his selected experts or through a brand new review process. The manner in which he is going about it demonstrates the fact that Kibaki has once more misjudged the desires, aspirations and dedication of the Kenyan people. This is quite unfortunate, coming hot in the heels of the referendum debacle.
Both conceptually and intrinsically, there appear to be no fundamental flaw with the proposed Constituent Assembly process. Many constitutions the world over have been constructed through this path. In fact, many eminent constitutional scholars prefer this process to a few selective experts. If handled democratically, transparently and fairly, this process could be one of the most appropriate means of healing a deeply divided nation like Kenya.
But the process is as well traveled as it is littered with dangerous political potholes.
The success of a full-blown Constituent Assembly process entails that there exists a widely acceptable way of popularly choosing representatives from all sectors, interests, parties, classes and regions of the country. However, with the heightened ethnic, political, regional and sectarian interests and rivalries prevailing in the country at the moment, the Constituent Assembly process presents a gigantic conundrum to Kenyans like no others before.
In my view, absent an instantaneous resolution of the simmering differences and mistrust between our political leaders (and we cannot wish these differences away), the Constituent Assembly process, if implemented, promises to be just another prolonged, protracted and expensive process. Selecting representatives to the Constituent Assembly will simply present another forum for our battle-hardened political bulls to fight each other on. Even if we manage to get a full hall of delegates, there is no guarantee that they will agree on anything, leave alone work together up to the completion of an acceptable draft. Again, we are not told the criteria of selecting delegates and by whom. We are also unaware of whether these delegates will use the already existing views as contained in the Constitution of Kenya Review Commission (CKRC) records, whether they will unilaterally substitute their views for that of Kenyans or how they will avoid similar problems that faced the Bomas delegates. NCEC and others have not explained how politicians will be kept away from compromising the delegates.
Ultimately, it is the ordinary people that will suffer the consequences of that Constituent Assembly political bull-fight.
The suggestion by the NCEC that the so-called “political class” be excluded from the Constituent Assembly process is not only naïve to the extreme, it is impractical. Apart from apparent conceptual problems with how NCEC defines “class”, how, for instance, would anyone exclude president Kibaki and his government or the LDP from such a process? And even assuming that one could actually do it (which is highly doubtful), how legitimate would such a process be without the support or endorsement of the existing political parties and their leaders? Unless the NCEC has some hidden weapon to render our politicians and political parties irrelevant (which cannot be done effectively in a representative democracy), I do not see how useful this proposal is.
Kenyans already gave their views to the CKRC. The CKRC spent public funds and went throughout the country for months while painstakingly collecting and compiling the people’s views, which they then published. The CKRC drafts contain concise renditions of our views on the kind of constitution we want. They also compiled verbatim what Kenyans said they disliked with the current political system, process, power-arrangements and constitution.
As far as I am aware, there have been no credible controversies around these views. And despite the rumblings from those close to the Kibaki regime during and after the conclusion of the Bomas process, a legitimate constitution draft (what has been uniformly referred to as the “Bomas Draft”) was prepared and is currently available either as a resource tool or an actual draft. It captures, in both spirit and content, the type of constitution Kenyans want. It is this draft that can either be subjected to a referendum without change or it could be edited for syntax, grammar, brevity and in order to address limited specific issues.
In any event, thanks to the creativity of president Kibaki and his close confidantes, we now have as well, the Wako Draft. Although this document was popularly rejected at the referendum on November 21st, 2005, both critics and supporters have acknowledged that there were some commendable provisions in this draft. Those laudatory sections could be incorporated into the Bomas Draft by a select group of drafters equitably proposed by the major political parties, civil society organizations and professional bodies such as the LSK and the International Commission of Jurists (ICJ). The operating word here is: equitably proposed. That means no group should have more representatives than the others.
The work of this group will NOT be to DRAFT a new constitution; it will be limited to editing the existing Bomas Draft and INCORPORTING the limited changes agreed to by all the interested parties, but always in conformity to the views expressed by Kenyans in the CKRC records.
Ultimately, the all-inclusive group of drafters should also extract all the poisonous provisions (that do not conform to the views Kenyans gave to the CKRC) from both Bomas and the Wako drafts and expose these to the people. That way, the final product may create the necessary environment for national healing.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada