Ethnic Based Referendum Will Destroy Kenya

By Adongo Ogony

Those in the know as well as the experts of tribal politics in Kenya tell us Kibaki and Kiraitu have it all figured out.

Word on the street is that with the addition of Nicholas Biwott into the anti-Bomas team sponsored by President Kibaki and his sidekick Njenga Karume, as well as the hard working duo of Kiraitu Murungi and Norman Nyagah, the Bomas Draft is for all practical purposes dead in the water. As expected the CKRC is ready to match lock and step with the government as long as those allowances and other perks keep coming.

Yup, folks if we were to believe the bravado of the tribalists, Kenya is headed to endorsing a Kibaki/Kiraitu/Biwott Constitution in the referendum whether we like it or not. Scary stuff that, I will tell you. I mean can you imagine Biwott is our new Wanjiku. Good Lord. Why did we waste all this time and Kshs 5 billion when the Total Man was always around? Personally I think the celebrations are a little premature.

In an interesting exchange one of the online Kibaki supporters Mr. Kamale writing in the Mambogani Forum, which I frequent, opined that after Kibaki bagged Biwott "the Kalenjin, Kikuyu and Meru vote" would be sufficient to ensure that Kibaki and his "protectors" will get whatever constitution they want and he added for good measure "there is nothing you or me can do about it" Really?

First of all let me make it clear that it is unfair to blame the treacherous failure of the Kibaki government to give Kenyans the constitution his government promised on Nicholas Biwott. That responsibility lies solidly at the feet of President Emilio Mwai Kibaki who not so long ago fought tooth and nail against the likes of Biwott and led many young Kenyans to their premature death believing they were fighting for "a people driven constitution" words Kibaki and Kiraitu must have uttered thousands of times before coming to power and words they must hate with a passion today.

The fact that Kibaki today has to turn to the arch enemies of a people driven constitution like Biwott to help him rob Kenyans of what he promised them to get elected tells us more about President Kibaki than about Nicholas Biwott, whatever Kenyans may think of him. Let us be honest. The constitutional banditry against Kenyans is being pursued by the chauvinists in power who want to retain the same Kanu constitution they pretended to oppose to get elected, not the mercenaries who are cashing in as they join hands to help the constitutional thieves carry the loot home.

Look at it this way:

If you were to stumble upon a bunch of bank robbers carrying sacks of cash and they ask you to help them because the loot is too heavy, should you be greedy enough to join them and get caught, the worst you can be charged with is being an accessory to the robbery, not robbery with violence. So let’s give Biwott a break, he is not the master-mind of this huge heist against the people of Kenya. He is just willing to provide some much needed muscle to ensure that we do not apprehend the culprits before they duck into safety with our hopes of a united country transformed into disposable cash for them.

Let's get a few things straight:

The fundamental purpose of a national constitution is to bring the nation together not to tear it apart, least of all on ethnic supremacist illusions. Our constitution has to enable our diverse communities to define themselves as one people pursuing common goals and bound by common values, with equal rights and responsibilities.

We have fought for decades negotiating for a constitution that honours and empowers our diversity as a people and a nation, namely our ethnic, religious, gender, and demographic diversities. The people of Kenya through the Bomas process which was the alternative to street fights and violent confrontations that preceded it came to together, talked together, argued, agreed sometimes, disagreed other times and eventually produced a Draft Constitution.

Unfortunately for our country when Bomas reached its final stages, there was a switch in the power dynamics. A good portion of those who proposed a lot of what is in the Draft Constitution today had moved from the benches of the opposition into positions of power, actually into State House. While in opposition they conveniently took sides with the majority of Kenyans and wholeheartedly supported the popular views Kenyans gave the CKRC commissioners.

With the benefit of hindsight now we know people like Kibaki and Kiraitu never believed a word they themselves told the CKRC. Unless the two have had a major brain transplant, of which we not are aware, it is impossible to reconcile their desperate moves to retain the Moi constitution today with the zeal with which they trashed the same during the CKRC consultations.

Then there is another twist in the power dynamics after the 2002 elections that Kenyans need to examine carefully so as not to be lured into the trap of tribal confrontation that the President and his advisors seem to be plotting for the nation consciously or otherwise.

When Narc came to power as we all know it was a mixed bag consisting of DP, Ford Kenya, LDP, NPK and others.

My good friend Onyango Oloo has said that "NARC was simply the rickety, overcrowded matatu being guided by drivers, touts and manambas with expired licenses"

Oloo goes on to say that "As long as they promised to deliver us alive at our next destination, we did not really care very much that their brakes did not work sometimes or that the matatu had to stop from time to time. Quite frankly, many of us could not wait for the time when we finally had had get out of that dilapidated mathree. So NARC was a temporary vehicle that would usher in the completion of the CONSTITUTIONAL REVIEW PROCESS..." I could not agree more.

Now this is where the big problem comes. Within NARC, at least before the elections, the DP core leaders (Kibaki and Kiraitu) and people like Prof. Kivutha Kibwana from the NCEC had previously been the fiercest supporters of the Bomas Constitution.

Accordingly many people, particularly within the human rights movement were banking on the DP wing of Narc to spearhead the transition justice agenda of Narc including the completion of the constitutional review process. Kiraitu by helping to kick out the former Chief Justice Ben Chunga out of office and setting up the Makau Mutua Task Force for the Truth Justice and Reconciliation Commission further solidified those hopes now being mercilessly trampled on by the same DP wing of Narc.

On the other side of the equation, the LDP consisting of people like George Saitoti, Kalonzo Muysoka, Moody Awori and others, except for Raila had not shown much support for the Bomas constitution. Then something that to date defies logic started unravel.

As soon as Kibaki stepped into State House he turned against the very proposals he made in support of the Bomas Constitution. Soon the so-called Kibaki Kitchen Cabinet started blaming Raila and the LDP as the people using Bomas to grab power. Before Kenyans could grasp what was going on, a war had been declared against Raila and the LDP as enemies of Kibaki.

Then the tribalists within the corridors of power in the Kibaki government started to turn to Kikuyu nationalism as a tool to “protect” Kibaki against Raila and company. This led to open incitement of the Gikuyu communities against the perceived enemies of Kibaki and against the very Bomas Constitution they had articulated and supported during the Moi era. All of a sudden words like Raila is fighting against the "Kikuyu Presidenc" were flowing with frightening frequency even from the lips of people like Koigi wa Wamwere who had built whole political careers as Kenyan patriots as opposed to tribal chauvinists.

This is the slippery path that has led us to the muddy waters in which Kenyan politics is stuck today. The original plan was to isolate Raila and the best tool for that was to invent the ridiculous excuse that Raila was using the Bomas Constitutional Process to "grab power from the back door" All of a sudden the DP and their allies, including some within the human rights movement abandoned the very proposals they had made for the new constitution and declared fighting Raila as their full time political agenda.

The question that we must ask now is this: Why did Raila become such a big enemy of Kibaki and his allies. The answer is simple. Kibaki and his inner circle fell in love with the Moi constitution but Raila refused to tag along. If he did they would have given him anything he wanted. All the other key figures, Musikari Kombo and Charity Ngilu were ready to abandon Wanjiku, but not Raila. Now Raila may have his own motives for supporting the Bomas Constitution but there is no question that the bulk of what he is supporting were actually proposed by the Kikuyu political elites in State House today in concert with the bulk of the Kenyan public. In other words if Raila is a chauvinist he should be a Kikuyu chauvinist. Welcome to the contradictions of bourgeous politics.

The other thing is that the attempt to isolate Raila and build a case against him based on the myth that it was just the Luos who support the Bomas Draft so as to get Raila a PM’s job flopped. This is exactly why the hypocritical supporters of the status quo are now shopping for other tribal minded leaders so as to gang up one set of tribes against another set of tribes. In my mind it is a loose loose situation for Kenya. In our country regardless of where one stands any attempt to build a new constitution on the basis of tribal confrontation will lead to a disaster that might take generations to fix with catastrophic consequences.

In fact I would argue that even those who support the Bomas Draft would be making a grave mistake to think that they can ram their option down the throats of others just on the basis of numbers. Let’s accept the obvious fact that President Kibaki and his allies have dangerously tribalized the constitutional review process and reversed the gains we made when Kenyans agreed on the Bomas process.

My advice is that it is time for politicians to take a step back and let cooler heads prevail. If we have to postpone things for a little while to retrace our steps and rethink our options as a nation then this is the time to do so.

I know that some Kibaki advisors have complained that if Kibaki does not deliver on the new constitution, his political opponents will use that as a campaign issue against him. That may be so, in fact Kibaki is a good reason we are taking 1000 days instead of 100 days to have a new constitution. But I dare say that if we end up with a bloody referendum where different ethnic and religious groups are at each others throats some of these leaders will not be defending their seats, they will be refugees outside the country. I am not so sure that is a better option.

At any rate I think there is a huge credibility issue with Kiraitu’s Constitutional Amendment Act 2004, which has just been published and I have a feeling the constitutional courts are going to have a lot to do with whether the tribal squad being assembled by Kibaki, Kiraitu and Nyagah are even going to be able to mutilate the Bomas Draft and write for the president the constitution he wants.

Quite frankly I think the constitution the president and his allies want is the one that exists today so why waste money and take such great political risks just to give a new cover to the same old constitution.

In terms of the Constitutional Amendment Act 2004, the NCEC has already raised some very poignant questions. In a Press Release dated April 26, 2005, the NCEC had this to say:
"By section 27 and 28, the Act gives parliament the power to make the new constitution. The pretensions that the Act will merely be addressing the contentious issues in the Bomas Draft do not change the fact that Parliament will actually be making the constitution itself by amending the Bomas Draft constitution"
I concur with this argument and I am sure many Kenyans do as well. The NCEC statement goes on to declare that:
"That Act they envisage of acting on the Bomas Draft is the very act of making a constitution. The court in the Rev.Njoya and Others application ruled that parliament did not have this power. The court ruled that this power is a constituent power that can only be exercised by the people themselves through a Constituent Assembly and or a referendum. Never the Kenyan Parliament on behalf of the people. This Act attempts to transform parliament into a constituent assembly and that borders on subversion of the constitution as was the case in the Obote pigeonhole constitution of 1966 in Uganda. Parliament will be conducting an unconstitutional act whichever way it is looked at!"

The NCEC has indicated they will challenge the legality of the Act in the courts and I am sure Kiraitu is expecting a multitude of courts challenges against his new work of genius.

In other words I don't think we are going anywhere anytime soon with the scheme to manufacture a constitution for Kibaki and his friends. It might be time for everybody to take a deep breath and ask themselves:

How do we make a constitution for Kenya and not for a small clique of elites in power?

The writer is a human rights activist