THE PROMISE OF LIBERTY AND ITS PROTECTION: PERSPECTIVES ON KENYA’S AGE OF CONSTITUTIONAL RENEWAL

8 Mar

BY: JAVAS BIGAMBO
The republic of Kenya stands tall on the stage of constitutional renewal, having endorsed, overwhelmingly, a new constitution on August 4, 2010. That endorsement put Kenya on the threshold of possible constitutionalism, human rights protection, constitutional freedoms, and a spirit of pure renewal to people of all faiths, to scholars and villagers alike, as it spread the same across themes and principles. The constitution of Kenya 2010 heralds a new cosmopolitanism, after multiple generations braved odd untold and surmounted authoritarian regimes for more than six decades after independence. Beyond those struggles, Kenya remains rich in conflict, and sublime in history. The constitution holds the promise to reconcile human sameness and difference at a time when the latter has been exploited by few to create agitation, engineer horrors, all plunged in the dynamic vagaries of national politics, ethnic profiling and religious discord.
The legal rehabilitation of the conflict ethos through the prism of the new constitution is one challenging task that requires more of integrity and harmony than ethnicity and wealth. The political mastery and technical control of national politics in Kenya has for so long subdued the entire nation to the whims of a few who are deprived of morality, principle, collective sense and piety. It cannot be denied that the journey to attaining the new constitution was made “smoother” by the post-election violence in Kenya. Yet the wheels of impunity seem to be rolling still. It is Tom Mboya who argued that his understanding of socialism refers to the proved codes of conduct in the African societies which have, over ages, conferred dignity on the people, and afforded them security regardless of their station in life. There is no dignity whatsoever when a government expends colossal amounts from public coffers, to fund unnecessary travels by “special envoys” to lobby for deferral of the Kenya case at the ICC, when thousands upon thousands languish in untold misery, degradation and death in makeshift camps since the post-poll malaise. They remain in utter despondency when the perpetrators are hopeful for a deferral that shall allow them to pursue their “political careers”.
There is urgent need of nationalistic consciousness among the leaders and the governed. Such consciousness must be guided by clear organization and mobilization that will not only stand for the constitution but for mutual trust and respect among groups and individuals. Citizens must also spearhead their right not to be economically exploited to curb the warping and wafting of the society. The recent global financial crisis is evidence enough that an economy based on profits for a few lurches from crisis to crisis and is scarcely sustainable. These are lessons that then Kenyan market must borrow from. Cedric Mayson posits that the western world sees Africans as savages engaged in brutal wars or witchcraft, ravaged by ignorance, famine, corruption, poverty, and HIV/AIDS, or as subjects of exploiters, investors, academics, politicians, clergy, journalists, and film producers. As an African I can reject many things, but not the truth. That analysis of Africa is true. All those elements are present in Kenya today. That poly-culturalism must not qualify ethnic profiling to the disadvantage of whatever group. To divorce itself from these elements, Kenya must resolve to establish itself as a highly cosmopolitan liberal democracy and must redefine its polity. That it must extirpate and excoriate itself from all forms of ethnicity, violence and regionalism. From the reversal of recent constitutional nominations of chief justice, attorney general, director of budget and director of public prosecution, it is impressive that there is a heightening salience of the law and certain legalization of politics tout court is crucial for constitutionalism.
Challenges for the new constitution
There are a myriad of challenges on the path to fully implementing the new constitution. They are hinged on ethnic chauvinism, mass unemployment, poor educational standards, corruption, poverty, disease and poor national priorities in resource allocation. The Bill of Rights is a fine print, yet it shall not be easy at total implementation. The state is obliged to safeguard the Kenyans’ right to food and housing just as much as the right to life. It is inescapable that our democracy too shall be defined by the HIV/AIDS epidemic. Deductively reasoning, I postulate that the HIV/AIDS epidemic undeniably refigures the discussion about the right to life. We can no less argue that the edifices of national government are founded on the power to sustain life on the principles of governance. The pandemic does not foster or grant life. It deprives it. This means that pursuant to the “right to life” maxim, any person dying of HIV/AIDS should have the right to sue the state for permitting death. Let me be clear. The state must do all that is humanly possible not only to eradicate HIV/AIDS, but to make sure that no one dies from it. Like conflict, disease must be frowned upon.
Other challenges include the very respect of the rule of law itself. The savageness of any people is based on the lack or respect for the accepted laws by those in authorities, who bend laws and postpone justice for selfish interests. County governments as an avenue to devolved governance shall be an interesting phenomenon, especially, guided by the fact that nearly all counties are demarcated on ethnic boundaries. If county governance shall take ethnic dimensions of political thought, Kenya shall have conjured up a giant force, a kind of force that shall organically vitiate the very conception of nationhood, the agora upon which the foundation of a state is established. The coveted nationhood should be the guidepost of national renewal. Tribal subjugation is entirely ordained and premised on the nefarious denial of national plurality on the table of democracy. The essence on renewal should be the freshness of thought socially, economically and politically through national polity, to enhance cohesiveness, liberty, progress and human understanding.

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