The Constitution of Kenya, as negotiated at Lancaster House in London between 1960 to 1963, is an agreement between tribes. It reflected the final compromise between communities alien to each other, but agreeing to be apart of one nation.
The Constitution became the foundation upon which over three dozen tribal communities would work together to create a unified nation. Professor Yash Pal Ghai in his book written in 1970, Public Law and Political Change in Kenya, says as follows concerning the removal of the Majimbo system: “In this sense, the alterations to the Constitution since independence have been positive. The rigidity and complexity of the Majimbo provisions would have acted as a constraint on planning and development”. A majority of the amendments have, however, been self-serving. They have been used as weapons in power struggles among competing political groups. Most of the amendments after 1966 were aimed at strengthening the Executive arm of government and giving President Jomo Kenyatta and his successor, President Daniel arap Moi, a political advantage over their opponents.
But as we review our Constitution, we must ask ourselves what the theme of the review should be. Are we renegotiating the compromise we made in 1963? Are we fostering the development of a united country? Apart from straightening the constitutional chaos created by the Kenyatta and Moi regimes, what do we hope to achieve?
The answer starts with the stakeholders in this process. Ultimately, Kenyans are the stakeholders, but into what sectors are they divided? Have we developed sufficiently over the past 40 years to ignore the tribal considerations on which the 1963 Constitution was negotiated? Our words say we have, but our actions are an emphatic “No!”.
When we sent delegates to the National Constitutional Conference, we selected them on sectarian interests that were not tribal. The Constitution of Kenya Review Act provides that for broad-based representation of all sections of society at the conference. But within a week of delegates assembling at the conference, they had coalesced into tribal groupings. We begun to hear of delegates from Mount Kenya, Nyanza, Western and so on. This raises the question whether we are adequately addressing the disagreements arising in the Bomas Conference or not.
At the Lancaster Conference, there were no pretentions about tribal allegiances. Our founding fathers went there as tribal leaders. They expressed their tribal ambitions and tribal fears. They argued, shouted at each other and almost caused us to go to Civil War. As the dust settled, they agreed and came home with a constitution. They continued to negotiate, agree and amend the Constitution to reflect the agreements.
The basic structure of our Constitution today is a reflection of the growing agreement among different tribal communities. When Ronald Ngala and ex-President Moi led their fellow KADU politicians in crossing the floor and joining KANU, when the tribal leaders in the Senate agreed to dissolve it and form one House, they were saying that they no longer feared each other and could work towards a unified system.
There is nothing wrong with tribal interests if is agreed that they form the basis of deliberations. But if Kenyans did not submit their views on the Constitution based on their tribes, only chaos can result when delegates are guided by tribal interests.
The silent pursuit of tribal interests is complicated by attempts to reverse the clock and try to renegotiate the 1963 agreements. When, for instance, we try to remove the Khadi’s courts from the Constitution, we are essentially trying to renegotiate a 1963 tribal agreement with an Arab minority. We are doing so in disregard of the how and why of the agreement. Similar circumstances surround many of constitutional provisions. These range from Maasai and European land rights to citizenship and the creation, and eventual abolition, of both the Senate and the position of Prime Minister. Consensus on most of these provisions was obtained through intense heat and acrimony, compromise and, in some cases, conquest. We we risk similar experiences in our attempt to renegotiate them.
A good measure of the blame for this result must be borne by the Constitution Review Commission, which opened up old wounds. Tribal passions that threatened to tear us apart in 1963 have been excited. While we should be striving to strengthen the tribal bonds that were created in 1963, we are untying them with the uncertain hope of weaving new thread to bind them together again.
Politicians share the blame for it is around them that the delegates at the Bomas Conference have coalesced into tribal groupings. It is they who are manipulating the constitutional review, not to promote a unified nation, but to obtain a weapon in the struggle for power. But it is on all Kenyans that the future of this country rests.
There are two choices. We could improve on our forefathers’ inadequacies and build a more unified nation for our children; or we could seek short-lived political advantage and bequeath to our children a more divided and warring nation.