A constitution review forum with professor Anyang' Nyong'oas reported by Mokeira Masita and Wakuraya Wanjohi
The Background to the Forum“Any society in which rights are not guaranteed, or in which the separation of powers is not defined has no constitution.”1 This thought provoking statement was quoted by the Professor Anyang' Nyong'o during a constitution review forum held on the 19th of March at the St. Paul's University Chaplaincy hall.A short history as to how this forum came about. In June 2001 the Wajibu Action Group organized a forum on poverty alleviation. By the end of that forum we knew that we had to make a difference for the poor somehow. We thought that a possible way of doing this was by making a submission on the subject to the Constitution Review Commission of Kenya. Armed with this mission we deliberated on how to proceed with it. As time went on, it became quite evident that it would be necessary to seek the advice of a knowledgeable person, someone who would also be conversant with matters of the constitution. Our choice fell upon the respected Member of Parliament, Professor Anyang' Nyong'o. He agreed to come and talk to us and so the forum, at which the professor was the main speaker, was held. It was our hope that by the end of that forum we would be in a better position to make intelligent submissions to the Constitutional Review Commission of Kenya. Some of the concerns we had and which would wish to see reflected in the new constitution in order that they would be adequately addressed by future generations of Kenyans were:
So these are the matters we asked the professor to address.
Separation of PowersProfessor Anyang' Nyong'o began his presentation by stating the assumption that we were all interested in the constitution but that perhaps we do not know exactly why. He went on to qualify this statement by saying that in Kenya there is a general feeling that things will be better when a new constitution is in place but is this just a blind faith or do people know there should be a change but just don't know what kind of change?To guide us into some critical thinking about the usefulness of constitutions in general, he first explored with us the reasons why we are unhappy with the present situation. One of these reasons—and a point on which there is general agreement—is the fact that far too much power is concentrated in the presidency. We have, in fact, a presidential, authoritarian system of government. Not only does the President have power to appoint and dismiss key figures in the executive, his office is also the largest among the executive arm and includes areas which should not normally fall under his jurisdiction. This excess of power makes a mockery of one of the key principles that a good constitution should uphold, namely that of the separation of powers between the legislative, the judicial, and the executive arms of government. The professor pointed to the recently held Kasarani merger meeting between KANU and the National Democratic Party as an example of this excess of power. It was obvious to critical observers that what transpired there was that the law (in this case in the form of the list of party officials) was made in State House, executed at the podium and, when conflict arose, the president was the adjudicator. “Even Saitoti [the Vice-President who to his consternation found himself omitted from the list] will tell you today that this is too much!” he added much to everyone's amusement. We need separation of powers. He went on to give an example of France where they had a similar system of government during the reign of Louis the 14th. The King was the chief lawmaker, executor and adjudicator. This absence of fairness towards a country's subjects was exactly the reason for the French revolution, a revolution that laid the basis for subsequent thinking about basic freedoms in societies, about what it means to be a citizen rather than simply a subject. It was during that time that people like Thomas Payne came out with writings on this issue. The principle of separation of powers is very often ignored in our society, not only by the President but also by others who execute the law, that is police officers and chiefs, the speaker said. A police officer who arrests you for not carrying an ID totally disregards the laws for it does not stipulate such a requirement. In spite of this he/she can arrest you with impunity. The principle of separation of powers is also ignored in the judicial system because it is the president who appoints the chief justice. And “he who pays the piper calls the tune.”
Citizenship and FreedomAnyang' Nyong'o proceeded to talk about another equally important principle: that of citizenship which, he said, is very important if we are clamouring for constitutional review. He asked someone the question: “What makes you a Kenyan; what do you and I have in common?” The answer: “That we speak Swahili,” did not satisfy him for, as he pointed out, so does the thief who bangs on your door in the middle of the night and orders you, in Swahili, to open for him.The professor went on to explore with us the meaning of citizenship and freedom. The principle of citizenship implies equal access to opportunities. People should be limited only by their own aptitude. Kenya became a republic in 1964, but in reality what does this mean? In a republic, sovereignty is meant to repose in the citizens; therefore a concept such as a “total man” should have no validity. But what is the case in fact? There is an almost total lack of opportunity and therefore of true freedom for many segments of the population: for the poor, for the Somali, for those who happen not to belong to the ethnic groups favoured by the Government in power. Therefore, according to the professor, Kenya is a republic only in form, not in content, for the current system of government does not recognize or implement the rights of citizenship. The concepts of “freedom” and “citizenship” must acquire a content for them to have validity of use.
Equal Access to OpportunityThe professor stressed the importance of equal access to opportunity as a criterion of freedom. He made reference to the book The wealth and poverty of nations by David Landes. In this book Landes tries to explain why some people are rich and others poor. He says that if you go to Africa you will find that the environment does not compel the people to work hard. The capitalists then come to take advantage of the labourers. The professor gave an example of recent graduates who, once out of campus, go to Industrial Area looking for work. They are so desperate that they are willing to work for next to nothing and of course the industry owners take full advantage of this. If only the people would realize that these industries cannot run without them.The other factor that mitigates against our sovereignty is the fact that, in practice, our government adheres to a “political culture of tribalism” with all the adverse consequences ensuing from this situation. One of these consequences is the use of financial reward to buy allegiance and impose one's ideas. This political culture of tribalism has seriously infringed upon the freedom of the vote since many people are now satisfied with the mere fact that persons from their ethnic group get key positions in government, never mind whether these persons advance the development of Kenya as a whole or even of their own constituency, or not. Many of the poor have no access to legal aid and are often found guilty of crimes they did not commit. The right to access education, courts, health, etc. is lacking. Some may say that it is not the fault of the government that some people are poor for all these things cost money. The professor was quick to assert, however, that all Kenyans pay tax, i.e. V.A.T. at the point of consumption. So, they honour their part of the equation. But the government is simply misusing the taxpayer's money. Although institutions of insurance exist, such as the National Hospital Insurance Fund and the National Social Security Fund, they have been looted! The new constitution thus must state how the citizens are going to have access to social services. In relation to this, the professor also put across to us the value of social solidarity, which according to Tom Mboya in 'African socialism' means mutual social responsibility. Those who have more should be able to make sacrifices for those who have less. We should be responsible for each other's welfare. The professor concluded that the constitution should provide for certain basic rights, namely the right to social welfare, to social equity and to security. Situations in which people go to hospital and cannot be treated because they do not have the deposit should not arise if certain basic provisions are in place. Kenyans say that in 1963 tulipata uhuru (we acquired independence) and every 12th of December we celebrate this. But are we really free when the government is unable to provide security? The government must be held accountable. Finally, the professor warned us against complacency as far as the upholding of basic rights is concerned. Even if these rights are enshrined in a constitution, they need to be won through citizens' empowerment. Answers to QuestionsA number of questions came up during the discussion period. The professor was happy to answer them.Question: On the basis of taxation, can we really afford to pay school fees from nursery to high school and provide healthcare for everyone, for a population of 30 million? Answer: The answer is “yes.” Our social security and health insurance contributions are paid on a graduated scale so that those who earn more pay more. The better off are therefore making sacrifices for the less fortunate—which is as it should be. Many of us pay our social security and health insurance but do not claim it. Therefore, others--the poor among them--should have access to it. It is not that the government cannot afford these services but that they are misusing your funds. We do not understand where our money goes and the government must be made to account for it. Access, good governance and equity are the answers to the problem of inequity. Question: How can the Attorney General sit in the same cabinet with people he is meant to prosecute? Answer: The answer lies in separation of powers. The AG's office should become an office in the public service. Question: The question of debt: in what way has the money we pay to the IMF and the World Bank contributed to the poor state of our economy? Answer: African countries have more than repaid their debts. There are countries that pay more than the foreign currency they earn. The West is not willing to write off our debts and let us start off on a clean slate because then they will no longer have control over us. The answer lies in a continued struggle for debt cancellation. We must also fight for equity under WTO and fair access to world markets. We can fight successfully through African regional integration so that we reduce reliance/dependence on the West. Only then will we have them falling over backwards to bring their business to us! Question: The Constitution Review process is going on under the regime that is in power. Will we therefore manage to make the changes we want? Answer: We should have rejected the bill until the Commission was set free from the executive. Only then should people have started giving their views. Even now are people really interested? Lately the constitution review has taken a back seat but soon they are going to come up with a constitution and call a national referendum. But we should have had much more civic awareness in order to have significant change. The reality is that the whole thing is a charade. The constitution will eventually come out but don't delude yourself that you will have contributed to it. Question: Does a constitution guarantee rights unless the people actually claim them? Answer: “We hold these truths to be self-evident….” However, individuals should be prepared to die in pursuit of their rights. Any government that denies them commits a wrong that is inexcusable. Defend, achieve and retain them. This regime will not promote your rights unless you come, not as a Kikuyu or a Luo but as a Kenyan and embrace them. Rights are never given: they are won. Note 1. Thomas Paine in Rights of man.
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