One of the mistakes we make in constitution-making is to ignore the fundamental dynamics of the Kenyan society, and the shameful ethnic axis along which it rotates. When we negotiated the first Constitution at the Lancaster conferences of the early 1960s, we met each other on a political, regional and ethnic platform. The delegates were not pretentious about their fears and aspirations, and the discussions were frank and forthright.
During the Lancaster conferences, it emerged that our society has big tribes and small tribes, marginalised and favoured communities, farmers and pastoralists. It is on the basis of these realities that the Constitution was negotiated.
We have changed as a society since then, but many of the fundamental dynamics that were in operation in the 1960s are still active. But because we like to deceive ourselves that we are a modern united country, we ignore these dynamics and are surprised when they become a hindrance to the fulfilment of our constitution-making goals.
The harmonised draft constitution released by the Committee of Experts on Tuesday contains the same mistakes that all previous drafts did. The team drafted a constitution as if we were a homogeneous, united society.
One of the determining factors in the positions politicians have taken on the constitution in the past is the issue of big tribe versus small tribe. Previously, this issue was represented by the Kanu/Kadu political rivalry, and when the two merged, it went underground. But it remains the single most important factor on the issue of executive president versus executive prime minister.
Those communities that have large populations reject the executive prime minister because they view it as an attempt to deny them the political advantage they have in determining executive authority. The communities with small populations reject the executive presidency because of the danger that big tribes will forever dominate them.
The draft constitution is hoping that these fears will not arise. It has therefore presented proposals on the issue of executive authority as a governance issue. And when it goes for referendum, our shameful dynamic will rise, and disunity will be the result.
A good thing that the harmonised draft has done is to place criteria for determining electoral units. However, taking into consideration the genesis of our disunity on this issue, it may be important to merge the on-going delineation of electoral units to the constitution-making process so that we address the fears that always bring disunity on this matter.
A second determining factor in our constitution-making is the question of historical injustice in allocation of resources. This is the single most important factor behind the contention over devolution of power.
Communities that have been politically and economically marginalised view devolution as the only way they can access national resources and escape domination by more favoured communities. Again, the draft constitution ignores the ethnic and regional ambitions behind the devolution debate and provides for it as though it were a governance issue.
First, there is no criteria set for the creation of regions and counties. When you consider that national resources will flow according to these new units, there must be some criteria for this delineation.
In the draft, there are eight regions based on the boundaries of the current provinces, and then each region is divided into counties. Coast has seven, Eastern 13, North-Eastern four, Rift Valley 19, Nyanza 12, Western eight, Central seven and Nairobi four. There is no criteria on how this was arrived at and why Nyanza would have 12 counties but Western and Central eight and seven respectively.
But in the financial provisions of the draft constitution, it says that each devolved government is entitled to an equitable share of revenue raised nationally. The more prosperous communities are likely to raise issue with the criteria for the creation of devolved government before they support these provisions.
The issue of devolution will also take a regional and ethnic angle because the Senate composition is to be based on these devolved units. And the Senate does have considerable powers on the issue of legislation. Bigger tribes may view the Senate as an attempt to defeat the concept of government by the majority. The way to avert these ugly dynamics is to address the unfortunate truth about our society.
The draft constitution is quiet on the issue of equity, principally because the committee is also under the same self deception like we have all been under in the past regarding ethnic rivalries.
Rights lawyer who steers the committee of experts
Dr. Ekuru Aukot is the Director of the Committee of Experts on the Review of the Constitution in Kenya. He is a member of the Council of the Law Society of Kenya and member of the Editorial Board of, ‘African Section’ of The Refugee Law Reader. He teaches on consultancy basis the Law on Refugees & IDPs at postgraduate level at the School of Law, University of Nairobi. Ekuru is also a regular lecturer on the Law, Policy & Practice on Refugees and IDPs Protection in Kenya at the East Africa School on Refugees & Humanitarian Affairs (EASRHA).
He is a co-convener on the theme of Group Rights in the on-going National Action Plan & Policy for Human Rights in Kenya. Ekuru completed his PhD in International Refugee Law from the University of Warwick, UK and an LLM in Law in Development.
He has taught Constitutional Law, Legal systems of Kenya on part-time basis at the Kenya School of Law; He is an astute enthusiast of positive political, social and economic change for the Kenyan nation.
He hails from Turkana district, one of the former Northern Frontier Districts under British Colonial rule, a region he critically analyses and refers to in his recent research, as ‘The Kenya of the North: A Legal-political Scar in the Creation of the Kenya post-colony’.
The draft is also not heavy enough on guarantees against fears of ethnic discrimination. Once a region and its counties have been allocated national resources, what are the guarantees that it will not enact laws and formulate policies that will discriminate against communities that are not historically resident in that area?
And if a region or county were to do so, there are no proper and effective mechanisms to reverse such attempts, or punish the county for adopting them.
When you consider that under the chapter on conflict of laws it is possible for regional laws to supersede national ones, this is something that the draft should be alive to.
On the face of the document, these devolution chapters read well, but the reality of the Kenyan society is not tidy. Unless theses realities are addressed, the draft will fall prey to the same dynamics it is ignoring.
Now that the document is up for debate, we should stop being pretentious and deal with the real problems and the real fears.