LAW · LAWYERS · LAW MAKERS · LAW KEEPERS · LAW BREAKERS

Kenyans owe a lot to England. In many ways England is our mother as a nation. It is England that lifted us from the dark ages and brought us the developed world. All our developments in medicine, literacy, law, agriculture, government, society etc. have come from England. Our national character is essentially from England. English is, in fact, our official language.

Even when we are all grown up now, England has become and remained our friend. When all those insensitive donors have come riding roughshod on us, England has always been sympathetic. While America issues besmirching statements about our security for all the world to hear, England encourages our tourism and even increases the number of flights of its national carrier to Kenya. It is with England that we have the firmest diplomatic relations and the diplomatic mission to London is the most prestigious for any Kenya Ambassador. 

England is, ironically, also the source of our worst problems. It is England that created, breed and bequeathed us tribalism. Through a deliberate policy of divide and rule, England, as a coloniser, prevented us from creating national awareness so as to secure its colonial rule. It is England that created the “Big tribe/Small tribe” dichotomy in Kenya so as to protect its nationals who were left behind after independence. 

It is England that created the insoluble squatter in the Coast Province by allowing foreign Arabs to register entire administrative location as their personal property regardless of the natives settled on those lands. It is England that created the Trans-Mara land problem by removing indigenous tribes from their lands and not resettling them there before independence. This problem has today developed into the cattle-rustling phenomenon that has defied subsequent governments. It is England that laid the foundations of the “shifta war” that occupied subsequent governments for many years and retarded the development of the North Eastern Province.

It is England that devised the majimbo system and the head of state/head of government executive system that almost drove us to civil war in October 1963. Differences regarding the two systems are today the “contentious issues” that are preventing us from having a new constitution. When we became independent, we spent the first six years trying to undo the constitutional mess that England had created. 

In therefore sends the clichéd cold sweat down the flanks when the British High Commissioner to Kenya starts taking an interest in our constitutional review process. When meeting representatives of Ford-Kenya over breakfast in his house, the English envoy said that the government had failed to manage the review process smoothly and European nations were worried by the course of things in the process. They wanted it resolved “fast”. The next day, he was quoted as saying that Britons want to see Kenya have a new constitution that can work.

From our experience as a nation, England is not always up to any good. In respect of our constitution, England has never been up to any good. Prof Yash Pal Ghai, in his book Public law and Political Change in Kenya on page 216 talks about the role of the British in our constitutional negotiations between 1962 and 1963. “We have seen that in Kenya the independence Constitution was hammered out during an interminable series of meetings between Kanu and Kadu, under the admittedly not completely impartial chairmanship of the British…” he says.

He also says on page 210: “I was also argued with some justification, that the Constitution was based on artificially engendered fears, for it was obvious that the European settlers and the British Government helped Kadu and accorded it an importance out of proportion to its popular support”.

Well, now, one must ask: looking at the historical reality of how the British messed us up in the first place when negotiating our independence constitution, what is Edward Clay up to? When asked by journalists, he was quoted as saying: “I am not an arbiter or a conciliator. I am an observer in the whole process”. But Mr. Clay had been part of the 100 diplomats that had been addressed by the government regarding the position of the review process. Having understood that there was a deadlock, why did he go behind the backs of all the other 99 diplomats and, with no intention of arbitrating or reconciling, engage in separate talks with the factions at the review process?

We should not cast aspersions did his intentions but to me this is the kind of hypocritical paternalism that gives President Robert Mugabe a good name. Without admitting his own country’s culpability for our predicament, Mr. Clay seeks to be “on top of things” and to “support the government’s efforts in reaching a consensus during this critical phase of the process.”

I would be very hesitant in drinking an antidote offered to me by the person who has just poisoned me. And we must be equally suspicious before embracing the UK envoy’s new and burning interest in our differences and conflicts.

The best contribution that England can make to our constitutional review process is to enlighten us on what happened 40 years ago. While the envoy now, though a bit late in the day, rightly states that there are some sections in the Bomas draft that are not practicable, he should help us understand why Britain divided such a devious system for us in the independence constitution. He would help us achieve consensus by giving us understanding of our predicament.

But when the approach is by having separate meetings with different factions away from the ear of the concerned public, it is disturbingly reminiscent of those secret meetings the English settlers and representatives of the British government held with Kadu with the sole intention of preventing the creation of an independent, strong and united country.

For many more decades to come, Britain will remain a very crucial factor in our economic development. The British make up the single largest bloc of investors in this country. The British government is also the largest bilateral donor to the Kenyan government. But Britain has its own interests, and the British government is not always the Santa Claus of the Common wealth.

If the British can influence the organization of our government to suit its own ends, they will do so. If Britain can hinder us from achieving the progress that would make it irrelevant to Kenya, the British government will hinder us. Not because they are bad people, but every nation has its strategic interests. And sometimes those interests have to be achieved at the expense of other nations.

For that reason, governments of sovereign states react with great hostility when a foreign country interferes with the domestic affairs of that state. It makes it no better where, as is the case of Britain, such foreign state is singularly responsible for the muddle in those domestic affairs. 

President Mugabe thus told off Tony Blair, the British Prime Minister, when he interfered with the lands crisis in Zimbabwe. It is Britain that created and fostered that crisis from the beginning. And as Mugabe told Blair, we must also tell Edward Clay: “Keep your England, let us keep our Kenya.”