If experts can’t reach common ground, how will we?

By Mutuma Mathiu

It is 19 years since the clamour for constitutional change gained widespread support. Before 1990, the idea of changing the Constitution, if I remember well, was the preserve of dissidents in various churches, the Law Society of Kenya and the underground Left.

But in 1990, the concept of the review became popularised. And in those 19 years, there haven’t been many innovations. We have been squeezing and massaging the same ideas with the same aims: reduce the power of the presidency, protect public resources, curb tribalism in public appointments and allocation of national wealth.

The first attempt to rewrite the constitution using a constitutional conference did not work; the process produced two different visions. The failure to reconcile those two visions culminated in an acrimonious referendum whose effects, along with a badly managed election, have gone quite a way to undermine Kenyan nationhood.

Now there is a team of experts having another go at it. Reports that there are differences in that team regarding the direction the process should take join a growing list of bad news, including famine, evaporating rivers and an economy heading to the ICU.

Shall we ever have a new constitution? And would one even solve Kenya’s many problems? I was once talking to a man who asked me a question that I found very illuminating. He asked: Have you noticed that the Israeli-Palestinian talks never focus on substance but on the talks themselves? The two parties have spent decades discussing road maps and not the so-called final status issues.

A road map will come with conditions to be met by both parties for the talks to progress to the next level: denunciation of violence, acceptance of the right to exist for the State of Israel, a freeze on settlements, recognition of Palestinian statehood and so on and so forth.

Invariably, the parties renege on their promises, the talks break down and the whole process of restarting them and getting back to the road map takes years of angry exchanges, endless meetings and unending shuttle diplomacy.

On a bad day, it looks as though the peace process will continue till the end of time without the parties ever sitting down to negotiate the status of Jerusalem or the return of refugees.

Nigeria has been under military rule for a good part of its history. A favourite pastime of the various generals was to put in place lengthy and laborious mechanisms for a return to civilian rule. The generals knew that the mere mention of a return to civilian rule would consume Nigerians, keep them busy cutting political deals, haggling and fighting while the military had some peace and some room to plunder the oil wealth.

Societies do get consumed by processes, wasting decades, opportunities and the creative resources of the masses. The way we have been sold constitutional review is that it would solve all Kenya’s problems, from poverty to potholes. My biggest fear is that we will discuss the constitution to the end of time and, second, if we do actually get one, it will not live up to its billing as a panacea for our collective troubles.

The biggest problem facing Kenyan society today is impunity, the refusal by the competent authorities to obey or enforce the law. This is a much more serious problem than appears at first sight: that the law exists, that the authorities have the wherewithal to obey or enforce, but they choose not to. Will they not assume the same attitude towards a new constitution?

An additional complication; for a new constitution to stand even the ghost of a chance of getting the approval of Kenyans in a referendum, it needs political consensus. Such consensus will be a compromise of the political interests of the various actors. I don’t think there is a breathing politician who would sacrifice his interests for whichever cause.

In any case, even if they were to do so, would a new constitution, being a political compromise, serve the interests of Kenyans now and in future? I would expect that the politicians at the centre of power would tend to prefer a system that confers power and authority on the centre. Those on the periphery prefer a weaker centre to improve their chances of having more influence over the affairs of State.

Thus, the party of a sitting President will back a strong presidency while the opposition is more likely to choose a system that disperses power. Can these two opposing positions be successfully negotiated?

And will a new constitution respond to the new challenges of Kenyan statehood, or will it attempt to respond to the problems of 19 years ago with the same old formula. The Kenyan state is unstable, Kenyans have lost trust and affection for one another. How does a society respond to such a situation? Is there a constitutional cure? How does a new constitution deal with the refusal of the authorities to enforce the law?

One of my colleagues tells me he thinks we should put the writing of a constitution on hold for eight years to give ourselves a chance to sober up. But is there any guarantee that in that period we will have sobered up or will we be just postponing a problem? In any case, if we have waited, protested, rioted, fought, argued, connived and conspired for 19 years, shouldn’t we just stick to it and get it over with?

Many questions, very few answers. One thing I do know is that without unanimity within the committee of experts, the chances of a political consensus are severely diminished. If the experts can’t agree, there is little chance that the politicians will and even less that Kenyans, in all their boisterous diversity, will. And that sends us back 19 years, where it all started.