What is the Kenyan Problem? Following the completion of the repeat presidential election held on 26th October, there have been calls for dealing with the underlying problems revealed by the poll.
Many pundits have proferred ideas on how to deal with those problems. One of the suggestions that seem to be gaining currency is the need to amend the Constitution.
In reflecting on the calls for constitutional amendment to fix what people think is the problem in the Kenyan society, my mind went back to my late teacher at the University of Nairobi, Prof Okoth Ogendo. He was the vice-chairman of the Constitution of Kenya Review Commission and the Rapporteur General at the Bomas National Constitutional Conference.
As we debate whether or not and what, if at all to change in the Constitution, it is advisable that all Kenyans read a famous article by Prof Ogendo titled ‘‘Constitutions without Constitutionalism: Reflections on an African Political Paradox.’’
When one reads the article, it is evident that its arguments and reflections are apt to the country at this particular point in time. He discusses the tensions between the Constitution as a document with that of adhering to the prerequisites of the Constitution, what is known as constitutionalism.
In his conclusion he opines that first, no single size fits constitution exists in the world. Every society must design its own constitutional arrangements to respond to its own context.
This is what a famous Nigerian constitutional scholar, Ben Nwabueze, referred to as autochthonous or home-grown constitutions. Prof Ogendo, however, argued that the biggest problem has not been the failure to design autochthonous constitutions, but rather the disregard of constitutionalism.
Based on the above arguments, we should ask ourselves whether our problem is the Constitution or constitutionalism. Although, there may be areas in the Constitution requiring changes, an issue that was even recognised during the referendum process a short seven years ago, the argument that the biggest challenge facing Kenya right now stems from the Constitution is a red herring.
If we intend to solve what is being popularly referred to as the Kenyan problem, the least we can do is to define it honestly first.
In a conversation with any group of Kenyans currently, you will not easily agree as to whether we have a problem, and if we do what that problem is. The views are as varied as the Kenyans themselves. Which may not necessarily be a bad thing. What is inexcusable is to attempt to solve a problem whose existence you are not sure of and whose content you do not want to delineate.
The country also has to acknowledge that while law is an important tool in society, it is not the solution to all problems. The sooner we recognize the limits of the law and explore the use of other tools too in solving our problems the better it is for us. Increasingly I find the levels of dishonesty and intolerance in our society both real and shocking.
You cannot compel honesty through laws alone. Constitutionalism focuses on the spirt of adhering to the dictates of the Constitution. While different political shades of opinion exist on the 2017 Presidential election, the one accusations that seems consistent on both sides of the divide is failure to abide by “the clear” provisions of the Constitution.
Each side in the contest has accused the other of this ill. How do you solve this by changing the Constitution? An approach that throws constitutional amendment to a problem that is not fully recognised as existing and is not fully defined as to content is to attempt to take a car to the garage when one hears noise in the car as they drive, yet the noise may be from the stereo in the car and not the parts of the car.
Kenya has to be honest with itself. That honesty requires candid conversation about whether we may be losing the spirit of constitutionalism?
What are its manifestations? How can these be fixed?? If we take this approach we may be able to identify the real issues that this country has to fix so as to ensure project Kenya is going on.
It is this much more than the Constitution that is wrong with us. The levels of dishonesty and tribal bile that is spewed on social media unashamedly is not about the content of the Constitution, but the content of society. Whatever changes we make to the Constitution will not be sufficient to deal with that problem.
The only sure path is one which candidly interrogates whether there is problem, and what it really is?
That sounds an easy task but if the discussions by media pundits the past two months is anything to go by, we have a long way to go before we have clarity on the true problem facing us as a society.