Maybe Not a Referendum, but National Discourse on Constitutionalism Must Never be on Trial
By Dikembe Disembe
It is in this country where a great law scholar not long ago lamented on the paradox of “constitution without constitutionalism”. We have developed our own peculiarities in the face of this earth. We make laws which humble us. We elect politicians who overwhelm us. We join coalitions and alliances which we would not have thought of yesterday. Like in Charles Dickens ‘A tale of two cities’, we are in the age of wisdom, we are in the age of incredulity. We are all going to heaven and yes, we will all be in hell!
When exported outside, these hakuna matata habits baffle other human beings on this earth. Because we occupy the very cradle of early man, perhaps, his genie is still too strong on us. But there is also that migratory story. Some of us jetted here from the thickets of Cameroon; where their relatives, the baboons and gorillas, still jump from tree to tree; others sailed from Pakwach while the rest can trace their origin. I dare say, we are still very primitive.
Because I am opposed to another referendum, or any activity which will collect masses of ignoramuses from Tharaka Nithi to Homa Bay for another national embarrassment; I wish to make known a few observations which my youthful curiosity has bore. For the record, I am ‘western-educated’ with no Chinese friends.
In Kenya, the African paradox of a new constitution without constitutionalism is what captures the imagination of anyone schooled beyond the basic ethnic level. From the lawyers who quote it and the politicians who ‘defend it’,Â our constitutional culture is steeped in ignorance and apathy more than knowledge and acceptance.
This is easily explainable. First, the common folk were never given time to ‘read’ and ‘understand’ the constitution. Instead, all that happened was a vote on the personalities who supported or opposed the constitution. Mark me wrong not. I am not alluding to our collective stupidity. Here at home, we ratified Raila Odinga, Mwai Kibaki, Kalonzo Musyoka and others. The Kalenjins, in their usual herd mentality, summarily rejected it!
In contrast, when the American convention had completed writing a new constitution in that summer of 1789, among many initiatives, it took the combined intellectual effort of James Madison, Alexander Hamilton and John Jay, writing under the pseudonym, Publius, to make a series ofÂ convincing cases for the adoption of that constitution. Altogether, it would take them to write a series of over 80 ‘arguments’ in the Federalist Papers just to let the people understand what they were being asked to ratify.
Constitution without constitutionalism is where ignorant folks are called upon to decide on the future they will never be part of. Constitution without constitutionalism is what has bred the horrible fear of the referendum. Constitution without constitutionalism is Africa’s meanest wicked problem.
Unlike the constitution, which are just law jargon, constitutionalism is a culture. When people embrace constitutionalism, a new way of thinking develops in people so that when a citizen is suspected of impropriety, a whole community of ethnic hirelings does not collect under a tree to pee on others. In a constitutional culture, public employees become faceless, working only according to the law, and allow themselves to be corrected by the same law. Justice becomes the only shield and defender.
What the citizens of Kenya need is that which expresses the rule of law: constitutionalism. Now, on the question that Okoiti Omtata and company wants to redress-the danger of a presidency without broad legitimacy, a presidency hanging precariously on the loose thread of tyrannicalÂ numbers (which means the numbers within institutions that are easily manipulated) – this question is what the American nationalists attempted to solve by the electoral college; and whose significance Madison explains in Federalist Paper No. 10.
Addressing the question of faction.
In their definition, the pro-ratification crusaders saw a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”. Nothing best describes a faction in our country more than the term “ethnicity”. Nothing ‘unites’ and ‘actuates’ more than ethnicity, or to use the sister-word, tribalism.
Unfortunately, whenever ethnicity is mentioned in this country, all filth is directed at Central Kenya, or precisely, the Gikuyu or kikuyus. Often, people forget that when the Maasai collects under a fig tree, with some poor emaciated old women sitting just a milimetre away from the cameras, and threatens to walk out of ODM for not supporting one Keriako Tobiko for a civil service post of DPP, or rants for not being included in the ‘small’ Uhuruto cabinet, that too is tribalism by the minority.
So long as universal suffrage is the only mode of choosing a president, Kenyans will vote along ethnic alliances, meaning one ethnic faction, or a combination of many ethnic factions, will always be outsiders.What is not always given is what factions these shall be. Who knew that Kambas and Luos shall join together in the persons of Kalonzo Musyoka and Raila Odinga to form a losing faction? Who knew, on the contrary, that Kikuyus and Kalenjins, despite butchering the rest of us with machetes,Â roasting each other in church fires; and taking each other to the Hague in parliament, would turn around and “win” the last elections?
If none knew these things were possible; then even today, no one can tell what is going to be possible in the August of 2017. In Kenya, political ‘shit’ happens. What we can tell, based on what we now know, is that we cannot tell anything for the future!
How then do we create a true alliance of the majority? How do we limit the role of ethnic factions in electing a true representation of the nation-state? Madison argues thus: “the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.” Because this great political thinker only studied white America; he did not foresee the blinding, and blighting effect of tribalism.
In Kenya, when it comes to the ballot, we have seen, and we can bet with our lives, that the jigger infestedÂ pauper of Murang’a and and the man he squats on his vast fieldsÂ have one thing in common: nothing! They see the same, think the same, vote the same and celebrate the same! Same can be said of other regions. So property, in our case, the so called “national cake”, though a major source division and differences, does not rank supreme. At the top is passion – often hateful, vengeful, fearful passion – tribalism.
If we are to have a president whose main role is to represent the people of Kenya, at home and abroad; with pride, authority and legitimacy, then we must remove universal suffrage! We must do away with the popular vote, nay, in fact, we must end the unpopular vote! But this is insurmountable. Because the popular vote is based on purely ethnic mobilisation; and we cannot do away with the ethnic blocs – the people – we are left with one factor to deify, then rectify: how then do we prevent theÂ “existence of the same passion or interest in a majority at the same time” or “render a majority faction unable to act”?
Only TWO ways: a civil war or electoral college. Let the people vote the elites; and let the elites select a president among them for the people. What happened in March, to be stark, is that the people voted for the person the unelected ruling elites did not fancy. We must elect the elites our primary representatives and go no further. We are too silly, uncouth, primitive, ignorant and whatnot to elect a president. But even at this level, the million shilling question still linger: Can this country’s elites rise above the tribe? If the answer is no, like mine, then only one option remains: a full-blown ethnic war. Too scary, but, oh yes, inevitable. It may not be in 2017 but it shall be; bloodier than the 2007. Only then shall the emerging nationalists remember Lincoln and call for a new birth of freedom!
Free from ethnicity. Free from tribalism. Oh God Almighty we shall be free at last!