Monday, October 20, 2014
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Constitutional Realism in Kenya

NAIROBI – At long last, Kenya is getting a new constitution, something that had eluded our country for decades, even though almost everyone knew that one was needed. That the referendum on the new constitution was voted upon so peacefully – only a few short years since my country was wracked by a violently disputed presidential election – is also worthy of celebration. By shunning violence, Kenyans demonstrated emphatically that we can settle our disputes peacefully.

Kenya’s pursuit of a new constitution has been long and painful. When President Mwai Kibaki first ran for election in 2002, he promised that, if he won, his government would deliver a new constitution within 100 days of taking office. Under the leadership of Yash Pal Ghai, a renowned Kenyan legal scholar whose international resumé includes helping countries like Afghanistan write their constitutions, the Kenyan National Constitution Conference commenced.

But 100 days later, there was no new constitution. Nor was there one 200 days later. Days turned into months, and months turned into years. By 2004, the constitutional review process had broken down, owing to major disagreements between Kibaki’s camp in the coalition government, and the rest of the country. The Constitution Review Committee was disbanded.

Following this failed attempt, Kibaki ordered Attorney General Amos Wako to author his government’s version of a new constitution. In 2005, Kibaki called a referendum to vote on Wako’s document. Kenyans rejected it.

The failure to agree on a new constitution fractured the coalition government and divided the country. By 2007, when Kibaki was up for re-election, Kenyans were far less optimistic about their country’s future than when he took office.

Much of their disenchantment was a result of Kibaki’s failure to keep the promises that he had made in 2002, among them the delivery of a new constitution. When, after the 2007 election, Kibaki was declared the winner under questionable circumstances, Kenyans’ patience ran out. The country exploded into ethnic violence, leading to the deaths of more than 1,000 people and the displacement of hundreds of thousands more.

Fortunately, that violence seems to be behind us. Today we have a new constitution, and Kenyans are celebrating. But what are we really celebrating? In the heat of the campaign for the referendum, I think we forgot to ask how replacing the old constitution would change our lives. We seem to have thought that the mere act of ratifying a new basic law would instantly end our country’s many problems.

But Kenyans must not let themselves get too carried away by this political victory; our country will not change at the stroke of a pen. My skepticism (not pessimism) comes from looking at Kenya’s law enforcement record. Although proponents focused solely on the new document, it doesn’t take a legal scholar to notice that there were good laws under the old constitution that were never enforced.

One example is the Disability Act of 2003. When enacted, human-rights advocates lauded it as a law that was going to end the suffering of Kenya’s disabled people. Seven years later, very few Kenyans with disabilities have benefited. One of the most obvious violations of the law is the flouting of Section 23, which requires all public-transit vehicles to be accessible to disabled people.

During rush hour in Nairobi, it is nearly impossible for disabled people to get to the city center to work in their tiny businesses, which normally involve selling sweets and polishing shoes near the sidewalks, by public transportation. Those disabled people who do not leave the city early are forced to wait until after dusk, when they can get a seat on a bus. Meanwhile, the government continues to issue new licenses to vehicles that do not comply with the law.

And, of course, there is the infamous corruption that has dogged Kenya’s judiciary and police force for years. Do we seriously believe that law-enforcement officials and people in other government agencies will stop taking bribes just because Kenyans have approved a new constitution?

Kenya’s new constitution won’t have much effect unless we Kenyans take a critical look at ourselves. As difficult as the journey to pass the new constitution has been, the ratification process was child’s play when compared to the fight that lies ahead. To fulfill the new constitution’s great promise, we will need to change a culture that fosters corruption.

We can no longer sit back and point fingers at those in government, while at the same time circumventing the law by paying bribes. The hard truth is that in many cases both the briber and the bribed are corrupt. Corruption flourishes only because most Kenyans give rather than take bribes. If we fail to accept that simple fact, come the 2012 elections, we will find ourselves right back where we were after the disputed elections of 2007.

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