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

Alex O. Awiti

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 postcolonial 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 ethicized 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.

Dr. Awiti is an Ecosystems Ecologist and Public Intellectual based in Nairobi.

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