Post by Onyango Oloo on Sept 30, 2005 17:55:21 GMT 3
By Malaki Mugemuke- Originally published in the Kenya Times
History records Waterloo as that Belgium town south of Brussels where the Allies handed Emperor Napoleon his final defeat exactly 190 years ago today. Legend has it that the battle at Waterloo was something to see: a win-all or lose-nothing scenario. The scents of victory began filling the air when the Allies stopped the Emperor’s men’s advancement with a withering point series of volleys. The once untouchable Emperor’s army disintegrated into a mass of panicking men almost within a blink of an eye, and there lay prostate, Napoleon’s dreams and reputation-all shattered in a swoop!
The Orange brigades are aiming to hand the Banana brigades a replica of the legendary Waterloo defeat come November 21st. The Orange brigades are sworn to march straight to crown one-Wanjiku-the victor following Waterloo. And the Oranges might well pull it off. The likelihood of a victory for Wanjiku is complicated but is buttressed by the occurrence of fissures beginning to peer out of the Banana ranks. Ford Kenya’s headman Kombo is a man in siege. Attorney General Amos Wako’s point man Simeon Nyachae has gone A WOL. George Saitoti’s hypothetical truisms of the launch of a Yes propeller with a bang are turning naught. And Commander Kibaki’s launch of the Yes assault against the No brigades is yet to show impact. One after another, Banana parades billed as to-be-hits are flopping outright or being called off at the very last minutes of the scheduled rendezvous.
The Banana locomotive appears to be losing steam on multiple accounts, four of which are worth elucidating here. First is the legitimacy thing. Legitimacy refers to an Act which is born of a valid or genuine power, something lawful. In the parlance of constitutional formation, legitimacy is the steam which drives constitutional acceptance. During peacetime, a free society can harmonise contentious issues hampering constitutional formation under process of law and without resort to tyranny. Such has not been the case with the procedures thus far employed by the Banana brigades to produce the Wako Draft. The Banana brigades’ procedures were compromised when they hijacked from Wanjiku the Bomas Draft. The machinations in parliament smacked of a sham.
The relentless on again off again illegitimate changes in the rolls of the members and leaders of the parliamentary select committee on the constitution, and the several dubious changes in its leadership so greatly robbed the Wako Draft of any discernible legitimacy.. .
The Wananchi considered the Bomas assemblage a culmination of the 2002 revolutionary battle that thrust Narc into power. Wananchi expected to cement the victory by crowning Wanjiku a beneficiary of a wananchi crafted constitution within 100 days of Narc’s ascension to power. However, Narc reneged, and thereby lost legitimacy with the wananchi on this issue. Narc was to present Wanjiku a constitutional frame which was to liberate Wanjiku from the yokes of autocracy and dictatorship following 40-some years of independence. Bomas’s frame attempted to strike a balance between the requirements of adequate governmental authority and effective controls on the exercise of political power. The Banana camp usurped the Bomas authority, and so modified and rewrote unilaterally the Bomas’s Draft in closed doors in offices inside the parliament and in Kilifi, and at Amos Wako’s place.
The Banana brigades ensured that none of Wanjiku’s guardians were present at these meetings to raise objections. With the secretive meetings and questionable procedures, the Wako Draft lost legitimacy. And so the Orange brigades are mad as hell, branding the Wako Draft vo}dabinitio or still born. In the Latin of constitutional scholar Sidney Fisher: neminem oportetesse sapientorum legibus: “no man (out of his own private reason) ought to be wiser than the law, which is the perfection of reason.” Nyachae has said that he removed the provisions of a Bicameral House and those of the Executive powers of the Bomas Draft because they were lacking in reason. The Oranges are crying foul for Wanjiku and it appears the wananchi are crying foul too. The cries are drowning steam from the Banana locomotive, and could well portend a Wanjiku victory come the D-Day.
The second headache pounding the Banana locomotive is the customs issue. Customs implies a practice of people which by common adoption has acquired the force of law with respect to the subject matter to which it relates. The Wanjiku delegates did not assemble at Bomas purely. Upon inspirational grounds. They brought with them several years of experience regarding the merits and demerits of the post independence constitution. Many of the delegates were enlightened sons and daughters of Kenya from across the varied Kenya’s multicultural society. One Wanjiku delegate participated at a very great personal sacrifice of his own life. Wanjiku delegates represented all generations of Kenya. Wanjiku delegations brought to the constitutional assembly specific imperfections which had bedeviled Kenya’s constitutional arrangement and which the wananchi had now said must be addressed and remedied with fiat.
Although a mere 40-some year old nation, Kenya had grown a whole lot with the culmination of the 2002 elections and it had now reached a time to give her a viable constitution to suit the demands which the historical election of the 2002 had placed upon her. Wanjiku had demanded that the old customs of authoritarian governance be repealed and in their place be replaced a lean and efficient government machine. Wanjiku yearned for a government which would proceed only with the authority of established institutions and laws; a government whose authority would be limited and defined by law; and a government whose officials would be responsible to law. In other words, Wanjiku wanted a government accountable to its people, not to its rulers.
The Wako Draft fails the customs test, and the failure saps steam from the Banana brigades’ locomotive. Contrary to generational lessons afore, the Banana brigades crafted Wanjiku a constitution which develop no power, provide no mechanism to control abuse of governmental authority; and intermingles church and state affairs. Also, the draft retains a hidden inbuilt mechanism which perpetuates the reign of the current administration through unchecked power and without election for five additional years. The Wako Draft strengthens the custom of the imperial presidency so much so that the powers of the president are effectively superior to the powers of the constitution itself. The Banana brigades explain it this way: Kenyans are sovereign and must protect the presidency from impeachment. The Banana brigades could be in for a big shock.
The constitutions that sprung of self crowned ingenious crafters undertaking to provide for the “true wishes” of the people, and whose authors thought themselves wiser than the law perished within the immediate moment of their releases. Such were the constitutions following the French revolution. They flopped because their authors disregarded the past. Sensing a sneaky plot by the Banana brigades to preserve the status quo, and to distort and disregard Wanjiku’s aims, the Orange brigades are revolting against the Wako Draft. It looks like the wananchi are concurring suit. The revolt is sapping steam from the Banana locomotive.
The third item derailing the Banana locomotive is what may be termed the “8020 MDT” or the 80-20 Myopic Dichotomy Truth. The 80-20 Myopic Dichotomy Truth is actually an explanation. The 80-20 Myopic Dichotomy Truth explains that the Wako Draft is actually an improvement over the Bomas Draft and that therefore Wanjiku should accept it because it is 80% perfect and only 20% imperfect. The 80-20 MDT is myopic because it is shortsighted in form, in that it gambles away Wanjiku’s life. It is dichotomous in the sense that it is self-defeating in execution. It is a truth that defeats its purpose when told. At times, the Banana brigades have even moved the explanation a notch further to a “90-10 MDT” range, explaining ,that if a candidate scores a 90% in an examination, does an examiner fail this candidate simply because the candidate failed to garner a perfect score? “Of course not,” answers the Banana brigades.
But the brigades are right only if the examiner did not stipulate 100 % as a minimum passing score. And there are tests which stipulate 100% as the scores required to pass. Possibly, constitutional formation is not one of such tests, though the Orange brigades are balking at anything less than ] 00% to cure Wanjiku’s pains. In reality, the Banana brigades have a point here. Constitutional scholars the world over concur that there can be no perfect constitution. If Kenya can succeed in producing a constitution that proves adequate to the aspirations of Wanjiku, then wananchi should’ cherish and accept that document as a major blessing and move on.
But the “no constitution is perfect” argument makes a tough sell for the Banana brigades because, the Wako assemblage, unlike the Bomas convention, inherited no credible legitimacy from the people to go grant itself the power to change what Wanjiku had christened at Bomas as legitimate. Also, Kenyans are a proud people and to ask them to take a less than perfect medication when they know they could do better elsewhere is simply to ask them to aspire for mediocrity, a proposition that most Kenyans will not entertain. As well, the Wako Draft makes it mighty hard to amend the draft. The 80-20 MDT herein haunts the Banana brigades all over again.
A plausible explanation may be to co-opt President Moi’s daily reminders that Kenyans should have chosen a group of disinterested constitutional maestros and maestras of the Kenyan society, shipped them to some island, say Lamu or Rusinga; task them to draft a Kenyan ideal constitution; provide them with amenities; lock them up; and banish them from returning to the mainland until they come up with a document acceptable to all.
British Prime Minister William Gladstone is said to have described the American Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” Americans are mighty proud and pleased by this tribute.
They say a peculiar genius of their constitution is that while it is specific and detailed to provide a necessary element of stability to government, it is also broad and general enough in its institutional arrangements and grants of power to allow for steady growth of what they term a “living constitution” to meet the altered requirements of a changing society. Constitutional historians Alfred Kelly and Winfred Harbison, record that the American Constitutional Convention was not without its own problems. Still, the delegates accomplished superbly the task at hand. No more than eleven states were ever present at one time during the voting times. Of the 74 representatives named as various delegates, only 55 appeared at the convention. The actual trench work was done by not more than 12 men. But this small group included several of the most eminent figures in America.
Among them were George Washington; James Madison, who supplied the greatest intellect and leadership in the Convention; James Wilson, the legal theorist of eminent status and a Scotti sh immigrant; Alexander Hamilton, a West Indian immigrant and a lawyer; 01 river Ellsworth a lawyer and later Chief Justice of the United States Supreme Court; William Johnson: a lawyer of the most respected legal minds of the time; Roger Sherman a self-made man who had risen from a shoe shiner to judge and public leader; Rufus King, a nationalist and lucid thinker; John Rutledge a polished lawyer; Charles Cotesworth Pinckney, a lawyer; Luther Martin, a lawyer; William Patterson a lawyer; and Benjamin Franklin a statesman and scientist among others. These delegates constituted as distinguished and brilliant a body of statesmen as America could have assembled.
Nearly all of America’s great citizens of the day were present. Many had long experience in public office and many were to rise to further eminence in the service of the government they were creating. Although many were lawyers and statesmen, other landed classes were also well represented. The lesson is that for Wanjiku, a better cure is attainable still, and there may be no reason to rush to take the 80-20 MDT medication. Thus, the Orange brigade doctors avow that they won’t allow Wanjiku to be“ administered the 80-20 MDT medication, because that would be tantamount to a gross dereliction of their Hippocratic oaths. The Banana brigades have disclosed fully that said medication is 20% poison laced. Being that alternatives are available for other medications with a zero risk of death, and being that others have gone a mile to seek and find such cure, the Orange brigades are betting for a better alternative.
In the adage of the “First Do No Harm” Hippocratic slogan, the Orange brigades aver that they would rather that Wanjiku is administered a no-poison Bomas Draft than a 20 % poison laced Wako Draft. The “Reject the 80-20 MDT bait” is a clarion call that is rhyming popularly with the wananchi and derailing the Banana locomotive on its trucks. Lastly, a fourth item that is sacking steam out of the Banana locomotive is this Orange Revolution thing. It is usually a revolution which produces alterations in constitutional law to renewed guarantees for endangered rights. A revolution is a fundamental change in the way of thinking about something, a clear renunciation of the old for the substitute. There is a revolutionary fervor surrounding the Orange beats which appear to be drawing the populace to the Orange Tent.
On the other hand, the Banana beats are dominated by doom and gloom invectives which can only turn even a most willing supporter away. Take the case of how much the Banana brigades are consumed with the person of Raila for example.
The mantra of the Banana brigades at almost everyone of their rallies is that the wananchi should support the Wako Draft ostensibly because Raila is bad. Or because Raila wants to get power through the back door (whatever this means). Or to prevent this turncoat Raila from hoodwinking the people into voting No, because the people do not know what is right for them. Or to vote Yes to prevent Raila from bringing the Kibaki government down because the Kibaki government is good for the people and Raila does not want what is good for the people, because Raila looks out only for himself and on and on and on. The Banana brigades hurl similar invectives against Kalonzo Musyoka as well. The Banana brigades’ theme is: We know better and the people don’t; Raila is a bad guy. We want to protect people from a bad guy. That is why you should vote Yes.
Committed to sober introspection and analysis, these Banana brigades’ anti-Raila invectives are striking wananchi as being gloomy, pessimistic and hollow. They are no justifications for supporting the Wako Draft. The invectives grossly underrate the Kenyans as being of too simple minds or intelligence.
Kenyans know that even in a superpower such as the United States which is touted for having the best constitution a brain of mankind could conceive, the active participation of ambitious statesmen and jurists in constitutional formation did not spell gloom and doom for America. They fought for a cause of a perfect constitution and the gift of posterity for their people. People who later became presidents or chief justices all actively participated in the American constitutional formation to give that country and its peoples a gift of posterity unrivaled anywhere today. George Washington, James Madison, Alexander Hamilton, Benjamin Franklin, and Thomas Jefferson were all active participants. Kenyans are not that stupid.
Why would a right thinking veteran of the 2002 revolution that threw Kanu from pm.ver vote Yes for a Wako Draft which reinstates the very reasons that caused the revolutionary to throw a 40 year old government out of power? It does not make sense. It is not logical that a person who has just fought a battle to free herself from slavery would cozy up with a person who purports to be her liberator, but who then now asks that she grant the purported liberator a written authority etched in law to authorize the purported liberator to enslave her anew. What is logical is that this ex slave will tilt toward a liberator who protects her endangered rights and who supports a written authority that enshrines her liberty rights into law. To convince this ex slave to reject this second alternative of guaranteed freedom and to support that first proposition of a return to bondage is a sale that would be very tough indeed to cl inch.
It looks like the wananchi are reasoning the freedom way and are choosing the freedom path and supporting the Orange brigades to defeat the bondage path of the Banana brigades and the Wako Draft.
Another reason the Orange brigades are drawing more support is the revolutionary fervor of their campaigns. Kenyans have just emerged from the revolution of the 2002 campaigns.
They are feeling at ease congregating with the compatriots who portend to deliver them the ultimate fruits of that revolution. In a sense, the 2002 revolution is not over. It will be over when Wanjiku is crowned a Bomas queen. At the Orange tents, the common enemy is the lack of a constitution which achieves the aspirations of Wanjiku as contained in the Bomas Draft.
They are a more positive and optimistic themes: To devolve the government; to distribute the national cake; to unite the people; to liberate the people from the yoke of an imperial presidency; to increase democratic space; to remove religion from the constitution; to stamp out bad governance; to assure efficient leadership; to assure power to the people and not the sycophants; to assure posterity; and on and on. The theme is not to lecture people about a bad guy from whom the people should stay away. In contrast to the Banana brigades theme of asking people to support the Wako Draft so as to protect the people from a bad Raila and to ensure the people a good Kibaki, the Orange brigades’ theme asks the people to reject the Wako Draft because it is flawed, and because it denies them the opportunity to realize their views of good governance as contained in the Bomas Draft.
The contrast between the Banana and Orange teams couldn’t be any starker. It looks like the Kenyans are intelligent enough to pick the oranges from bananas and are going the Orange Revolution, leaving the Bananas with very little to no steam.