Post by quoted from africa oped on Sept 17, 2005 7:10:02 GMT 3
Are we prepared for a post referendum Kenya?
From: Jared Oluoch <nyakwarotiya@...>
Date: Fri Sep 16, 2005 5:59 am
Subject: THROUGH THE KEYHOLE
A few days ago, I read an editorial in the Toronto Stars which although paid tribute to U.S army LT-General Russell Honroe for his response to storm battered New Orleans, did not hide its disgust for the Bush administration thusly: “The growing importance of ideology has meant that well rounded pragmatists have been squeezed out of the U.S political process, replaced by ideologues and party loyalists whose main attribute is not what they have done, but what they believe.”
This view, shared by other commentators in the Washington Post, New York Times and a Chicago daily bears some similarity to Kenya’s political process in regard to the countdown to the referendum which nears everyday as the day steals upon the night to borrow from Shakespeare.
Of significance to me this cool Friday morning is whether the people of Kenya in general and President Kibaki in particular are/is prepared to live with the eventuality of the outcome of the national plebiscite.
Let us note from the very beginning that a constitution is basically a social contract between the governed and the governor. Three influential social contract theorists immediately spring to mind.
French political philosopher and educationist Jean Jacques Rousseau ( 1712-1778) says in his theory of social contract that citizens come together to give up part of their natural liberty under custody of the government. English philosopher Thomas Hobbes (1588-1679), says in his theory of Leviathian, which is by its nature tyrannical, that the citizenry subjects all her liberty to the government. And British philosopher, Oxford academic and medical researcher John Locke (1588-1679) advocates for governance by consent where citizens willfully subject to the rules of the government of the day.
In any constitution making process (and let us note that constitution making is a process and not an event) there are five irreducible minimums which we should use to judge the draft constitution bill now awaiting referendum. These are:
Ø Separation of powers among different arms of government namely executive, judiciary and legislature.
Ø Specialization of the rule
Ø Methods or processes put in place prior to solutions of the problems.
Ø Amendment clauses set in place prior to enactment of the document.
Ø Bill of human rights
The question we should all ask ourselves is this: Does the draft constitution awaiting referendum address these issues satisfactorily? Of importance to note again here, is that a law or constitution in this case originates from the cultures of the people. It follows then that the people must play a key role in its formation. This is what the Bomas conference attempted to achieve. It is beyond the scope of this column, at this juncture, to point out the fundamental flaws of the Bomas conference.
Constitution making all over the globe, legal scholars opine, have always been revolutionary. And here a quick distinction between revolutions and coup de tats is imperative. While a coup de tat changes specific parts of government a revolution changes the entire society.
Among the widely quoted constitutions made under revolutions include:
Ø The French constitution enacted after the French revolution of 1789- 1799.
Ø The USSR Bolshevik constitution made after the 1917 revolution which was characterized by food riots, women marches and soldiers mutiny.
Ø The German constitution enacted after the Germany revolution of 1918-1923.
Ø The South African constitution, which as we may all be aware, was enacted after the apartheid period.
So, join me in asking this quiz: will Kenya, making a new document in an exceptionally peaceful time break the jinx and rise to the occasion?
This question now brings us to the probable outcome of the November referendum. The situation obtaining on the ground, as best I can tell, is that the NO camp has a head start. The majority of the common man identifies with this group. As a caveat, I should point out that the Electoral Commission of Kenya, which retired President Moi used to his advantage of the years, is promisingly intact both in structure and personnel.
While the increasingly informed Kenyan public will pass a harsh verdict on the Kibaki presidency, the people must brace themselves for the promulgation of a new constitutional order on December 12th, as I posited in these pages a few days ago. On the other hand, should a free and fair poll deliver victory to the NO team, it would spoil the political future of the incumbent President and stymie his quest for a second term in office.
And should the people’s choice be roundly rejected by the ruling class, then that elite is bound to fall into problems with the people. Given human nature, political scientists tell us, a personality can not be entrusted with power. A personality cannot be the supreme authority. That supreme authority must always be the law derived from a sound constitution. For a constitution is about a people and not leaders.
When a government takes people’s views for granted, the people loose confidence in it and the leadership cycles sink beneath the low water mark. We saw it in Sudan when a Prime Minister imposed Islamic sharia laws on the people of Sudan. The eventuality was the formation of SPLM. And well, the results are there for all and sundry to see.
The people of Kenya wake up for a new constitution on November 22nd, but put their Chief Executive on notice that he may as well as ask his predecessor how he spends his retirement.
Jared Valentine Oluoch
Nairobi
From: Jared Oluoch <nyakwarotiya@...>
Date: Fri Sep 16, 2005 5:59 am
Subject: THROUGH THE KEYHOLE
A few days ago, I read an editorial in the Toronto Stars which although paid tribute to U.S army LT-General Russell Honroe for his response to storm battered New Orleans, did not hide its disgust for the Bush administration thusly: “The growing importance of ideology has meant that well rounded pragmatists have been squeezed out of the U.S political process, replaced by ideologues and party loyalists whose main attribute is not what they have done, but what they believe.”
This view, shared by other commentators in the Washington Post, New York Times and a Chicago daily bears some similarity to Kenya’s political process in regard to the countdown to the referendum which nears everyday as the day steals upon the night to borrow from Shakespeare.
Of significance to me this cool Friday morning is whether the people of Kenya in general and President Kibaki in particular are/is prepared to live with the eventuality of the outcome of the national plebiscite.
Let us note from the very beginning that a constitution is basically a social contract between the governed and the governor. Three influential social contract theorists immediately spring to mind.
French political philosopher and educationist Jean Jacques Rousseau ( 1712-1778) says in his theory of social contract that citizens come together to give up part of their natural liberty under custody of the government. English philosopher Thomas Hobbes (1588-1679), says in his theory of Leviathian, which is by its nature tyrannical, that the citizenry subjects all her liberty to the government. And British philosopher, Oxford academic and medical researcher John Locke (1588-1679) advocates for governance by consent where citizens willfully subject to the rules of the government of the day.
In any constitution making process (and let us note that constitution making is a process and not an event) there are five irreducible minimums which we should use to judge the draft constitution bill now awaiting referendum. These are:
Ø Separation of powers among different arms of government namely executive, judiciary and legislature.
Ø Specialization of the rule
Ø Methods or processes put in place prior to solutions of the problems.
Ø Amendment clauses set in place prior to enactment of the document.
Ø Bill of human rights
The question we should all ask ourselves is this: Does the draft constitution awaiting referendum address these issues satisfactorily? Of importance to note again here, is that a law or constitution in this case originates from the cultures of the people. It follows then that the people must play a key role in its formation. This is what the Bomas conference attempted to achieve. It is beyond the scope of this column, at this juncture, to point out the fundamental flaws of the Bomas conference.
Constitution making all over the globe, legal scholars opine, have always been revolutionary. And here a quick distinction between revolutions and coup de tats is imperative. While a coup de tat changes specific parts of government a revolution changes the entire society.
Among the widely quoted constitutions made under revolutions include:
Ø The French constitution enacted after the French revolution of 1789- 1799.
Ø The USSR Bolshevik constitution made after the 1917 revolution which was characterized by food riots, women marches and soldiers mutiny.
Ø The German constitution enacted after the Germany revolution of 1918-1923.
Ø The South African constitution, which as we may all be aware, was enacted after the apartheid period.
So, join me in asking this quiz: will Kenya, making a new document in an exceptionally peaceful time break the jinx and rise to the occasion?
This question now brings us to the probable outcome of the November referendum. The situation obtaining on the ground, as best I can tell, is that the NO camp has a head start. The majority of the common man identifies with this group. As a caveat, I should point out that the Electoral Commission of Kenya, which retired President Moi used to his advantage of the years, is promisingly intact both in structure and personnel.
While the increasingly informed Kenyan public will pass a harsh verdict on the Kibaki presidency, the people must brace themselves for the promulgation of a new constitutional order on December 12th, as I posited in these pages a few days ago. On the other hand, should a free and fair poll deliver victory to the NO team, it would spoil the political future of the incumbent President and stymie his quest for a second term in office.
And should the people’s choice be roundly rejected by the ruling class, then that elite is bound to fall into problems with the people. Given human nature, political scientists tell us, a personality can not be entrusted with power. A personality cannot be the supreme authority. That supreme authority must always be the law derived from a sound constitution. For a constitution is about a people and not leaders.
When a government takes people’s views for granted, the people loose confidence in it and the leadership cycles sink beneath the low water mark. We saw it in Sudan when a Prime Minister imposed Islamic sharia laws on the people of Sudan. The eventuality was the formation of SPLM. And well, the results are there for all and sundry to see.
The people of Kenya wake up for a new constitution on November 22nd, but put their Chief Executive on notice that he may as well as ask his predecessor how he spends his retirement.
Jared Valentine Oluoch
Nairobi