Kenya's draft law not universal panacea but a chance to build a nation

Kenya is on the brink of something monumental. The country is pulsating. A world is waiting with bated breath.

On August 4, 2010 millions of Kenyans will stand in line, many for the first time in their lives, to cast their vote in a constitutional referendum. For many Kenyans, this referendum, especially the promise of a new constitutional dispensation, seems to be the universal panacea for all that is wrong and frustrating with the country.

My sense is that there is a veritable burden of misconceptions and false expectations about what a constitution can and should do. We forget that there are critical boundary conditions of social trust and cohesion that must exist to enable a new constitutional order to flower.

The frustration that many of many Kenyans, especially those not favored by the prevailing political arrangement, have is to do with the excessive powers vested in an ethicized presidency, impunity that enables and underwrites ethnic fiat and the uncertainty about whether their turn to loot will come soon enough.

At the level of ordinary citizens, what we see is ethnic suspicion founded in politics. This ethnically diverse nation is then engulfed in a mindless zero sum game. It becomes easy and even necessary for politicians to mobilize around their ethnic base or a rally together around ethnic coalitions. The voting public cannot participate thoughtfully in democratic process because their ethnic chiefs have framed campaign debates and have the final say on how they vote.

The fact that electoral constituencies are defined ethnically is problematic. Politicians learn from very early in the careers to pander to the ethnic sensitivities of their voters. Political parties map neatly along ethnic fault lines. It makes it difficult for instance for a parliamentary or civic candidate from ethnic group X to support a presidential candidate from ethnic group Y without insulting ethnic sensitivities and even risking their own chances of getting elected. At the political level differences are neither personal nor based on principle. They are ethnic.

Different ethnic groups can only come together, often fleetingly, if they rationalize a negative stereotype or propagate a mutually compelling and circumstantial narrative of victimology that casts one or more ethnic groups as the villain.

The problems we have seen in the half a century since independence are merely symptoms of a deep and fundamental identity problem. Who are these people who occupy this geographic space defined politically and administratively as Kenya? How did these people get here? Do they have common history? Who framed that history? How do we know what we know about ourselves? And does our disparate colonial experiences matter? How did we relate before the colonial state? How did we relate in the colonial state? How do we relate in the post-colonial state? What does it mean to belong here, beyond holding a Kenyan passport?

Our history, especially the uneven burden or privilege of our colonial experience, confers differential levels of entitlement and belonging in the Kenyan state. Some communities claim they suffered an inordinate burden in what is often referred to as the independence struggle. For those communities who do not have independence heroes to tout or land that was grabbed by settlers, they are always left feeling like the poorer cousins, not worthy of the “fruits of independence”. Who are the founding fathers of this “nation”? What qualifies any individual or group of people to claim to be the “founder of the nation”?

In Kenya, identities are multiple, allegiance is to ethnic grouping and majority of people do not feel a part of the whole. To the extent that a constitution embodies a people’s nationhood and enshrines fundamental rights and obligations of citizenship, identity presents a serious challenge to the intention, purpose and promise of a new constitutional dispensation.

For all intents, political and practical, we are collection of ethnicities under one administrative conglomerate, Kenya. Loyalty is first and foremost to one’s ethnic group. The three successive governments have governed by the logic of ethnic expediency. The public enforces adherence to the ethnicity logic and honor.

It is difficult to get Kenyans – a term that could easily just mean the people who live in Kenya – to question and debate the relevance and efficacy of the education system. But it is very easy to spark a protracted and robust debate on the ethnicity of the next director of the Kenya Airports Authority or the Kenya Ports Authority. Prosecution of corrupt public officials is often stymied by claims of ethnic lynching.

What is most disconcerting is that our institutions of higher learning are organized by this ethnic paradigm. In some public universities, academic departments are ethnic enclaves, just like. The new universities we have been spawning over the last 10 years are essentially ethnic fiefdoms. The post election violence of 2007/2008 has provided an easy justification of what was already a fairly standard practice. Education, irrespective of the level, does not make a difference.

I only hope that whatever the outcome of the referendum, the people of Kenya can have the courage to engage in an honest and robust debate. We need a robust debate that can bring to the fore the big and urgent questions of our multiple identities, histories and fears. The events of 2007/2008 presented an opportunity for debate but we as a nation lacked the courage.

For many Kenyans, this referendum, especially the promise of a new constitutional dispensation, seems to be the universal panacea for all that is wrong and frustrating with the country.
There is a veritable burden of misconceptions and false expectations about what a constitution can and should do. We forget that there are critical boundary conditions of social trust and cohesion that must exist to enable a new constitutional order to flower.

The frustration that many Kenyans have, especially those not favored by the prevailing political arrangement, is to do with the excessive powers vested in an ethnicized presidency, impunity that enables and underwrites ethnic fiat and the uncertainty about whether their tribe’s turn to loot will come soon enough.

In Kenya, identities are multiple, allegiance is to ethnic grouping and most people do not feel a part of the whole. To the extent that a constitution embodies a people’s nationhood and enshrines fundamental rights and obligations of citizenship, identity presents a serious challenge to the intention, purpose and promise of a new constitutional dispensation.

For all intents, political and practical, we are collection of ethnicities under one administrative conglomerate, Kenya. Loyalty is first and foremost to one’s ethnic group. The three successive governments have governed by the logic of ethnic expediency.

Passing the draft law will not give us the thing we sorely need, a Kenyan Nation. But passing the draft law could give us the courage to start on the long and hard road of building a nation.