The Draft constitution is getting drowned in the “YES and NO clamour”
As the referendum on Kenya’s new constitution draws near, the debate over abortion and the Kadhi’s courts are taking centre stage and threatening to derail the two-decade old struggle of Kenyans.
By threatening to vote “No” in the upcoming referendum if the political class fails to delete the Kadhi court and amend the clause on abortion in the new law, the Christian clergy appear to be stoking up a Church-State war in which the religious leaders must either win or perish as a political force in this country.
Despite the fact that abortion has never been legal in Kenya, and the new draft expressly provides for matters to remain that way, church leaders have vowed to mobilise their followers to reject the document.
The church objects to the section of Article 26 that empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment.
Christian leaders are also opposed to the retention of Kadhis’ courts in the proposed Constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a Kadhi.
The controversy over the termination of pregnancy has pitted the church against pro-choice activists and is largely fought on the battlefields of values and morality. The debate has degenerated into shouting matches over the viability and humanity of foetuses and when exactly life begins. Lost in all this is the fact that, from a public policy perspective, these considerations are largely academic.
The statement by the catholic Bishops released on April 16th reads in part: “…As Bishops of the Catholic Church in Kenya, we are supportive of a new Constitutional Order for our country and have worked long and hard to bring the process to its present state. We encourage all of you to prepare carefully for this important event by first of all registering, and then on Referendum day, to go out and vote.”
“It is our duty, as moral leaders and shepherds of the Catholic Church in Kenya, to present for your reflection certain, serious problems connected with Article 26 (paragraph 4) of the Proposed Constitution. In order to refresh your memories, this article states:
Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger or if permitted by any other written law.”
“If this article is maintained in the Proposed Constitution as it is, we will be compelled based on moral grounds to advise the people of Kenya to vote NO.”
Apparently lost in the cacophony is the concession made by the political class to introduce article 26(2) that states that life begins at conception as a concession to the demands of the Church leadership which is well aware that such matters are usually not for constitutions.
One is inclined to opine, should the political leadership cave in to the demands of the clergy and amend the clause on abortion will that alone lead to an upright nation? This is in the backdrop of Studies in Kenya in 2009 showing that 47 per cent of all young people below the age of 20 years who get pregnant while in school resort to abortion. “Young unmarried women would rather seek an abortion than let their parents know that they’re pregnant,” says Wanjiku Gikang’a, a family therapist and university lecturer.
The clergy has also trained its focus on the Kadhis’ court in an orgy of myth-making that mines the road to the referendum. The anti-kadhi crowd has depicted the “Muslim family” as a new creation of the current draft, yet the truth is that it is as old as the republic.
There is also the erroneous view that the kadhis courts are an elevation of one religion (Islam) over the others and a threat to other faiths. It is equally disquieting for the some clergy members to claim that the Kadhis’ courts is a route to usher in Sharia law, and thus frightfully invoking the spectre of Islamic extremism that has bedevilled such countries as Somalia and Afghanistan to instil fear and win the hearts of Kenyans.
Article 170 (5) of the proposed law is very clear on the authority and sway of the kadhis’ courts, whose jurisdiction is limited to personal status, marriage, divorce and inheritance in cases where all parties are Muslims. Further more the kadhis court is at the bottom of the top heavy judicial system along with magistrates’ courts, courts martial and local tribunals.
Far from being a threat to organised religious, civilization, public order or individual freedom, the court should be allowed to come through as a blissful symbol of Kenya’s olive branch to religious minorities as part of an emerging permissive democratic culture
The Proposed Constitution has various provisions which will accrue and ameliorate the condition of individuals in respect of their age, gender, citizenship and enables individuals to benefit from envisaged elevated rule of law. For example, a young woman stands a good chance of participating in political affairs, enjoy equality with spouse during marriage and upon its dissolution and participate in governance.
Religious leaders ignore the fact it is not only spiritual matters which enable an individual to live a wholesome life but also other factors — economic, political and social. The Proposed Constitution seeks to put these three spheres into proper perspective.
An examination of Kenya’s socio-political and economic panorama shows that there have been laws that are not against Christian teachings per see but poor governance and human rights violations. While the religious leaders have a right to make their views known, they should do a cost- benefit analysis while calling for the rejection of the draft, so that their call is not ostrich activism.
The second point is that the calls by religious leaders is not only based on misinterpretation of Article 26(4) that allows for indiscriminate abortion but also exhibit the attrition between free will and choice, thereby bringing to fore the values system that informs our lives. The crux is that abortion is wrong based on Christian teachings. If abortion is wrong and Christians believe that God’s law is a higher law, is there a need for the same to be spelt out in the constitution in order to convince people that it is wrong hence deter them from engaging in it?
If indeed God’s law is higher, then a true test of commitment to God’s law would be the willingness to follow it even if circumstances and law permit it. To underscore this point, it would be important to draw from the experience of an early Christian in 7th Century, Origen, a disciple of Clement. After he converted to Christianity, he castrated himself to stifle sexual desires. One day he saw women taking bath and he was not sexually aroused, whereupon he pronounced ruefully, the classical words: Salvation from God is by grace not by law. In similar fashion, rather that push for adherence to biblical teachings through constitution, the religious leaders should push for the same through the values system and natural law that might reside in the hearts of their congregants.
Most importantly, there is need to unveil the fears covered by the fig leaves on call for rejection of draft based on provision on Kadhi’s courts. The downside of the “No” call by a section of religious leaders is that it will provide an opportunity for political nabobs to cloak Christianity in rejecting the draft.
Showing posts with label OPINION. Show all posts
Showing posts with label OPINION. Show all posts
Friday, August 6, 2010
Kenya has a Chance of a New Start
Kenya has a Chance of a New Start
This week Kenya has defied expectations. Voting in a referendum on a new constitution was peaceful, and yet the changes this piece of paper could make are potentially momentous.Among other proposed changes, It will introduce an impeachable president, MPs recallable by their constituents, a land commission to look at historic injustices, an expanded bill of rights, a reformed judiciary. These are causes for which generations of opposition leaders have fought. It took a fraud-plagued election in 2007, in which Kenya teetered on the edge of civil war, to put this on the agenda, as a requirement of the peace deal. It is not a magic wand, but as many pundits have put it – it is a chance for a new beginning.
The campaigning has not been wholly peaceful – six died in grenade attacks at a "no" rally at the start. And the old monsters of Kenya's patrician past have not melted quietly away. Former president Daniel Arap Moi, who suppressed the first major push for constitutional reform by force, was back in his helicopter urging people to vote no, claiming the constitution had been written by outsiders and would stir up ethnic tension. His critics suspect he is more concerned about his vast land holdings, which could be subject of official investigation.
As Kenyans prepare for the implementation of a new constitution, in the expectation of a Yes vote, attention will turn to technical questions of implementation. The Proposed Constitution (PC) sets out in some detail how the old order will give way to the new, and how that new order will be made a reality. On the ‘effective date’, at most 14 days after a positive referendum result, the new constitution will come into force, repealing the old. While most provisions, including the expansive bill of rights, will come into effect immediately, some, particularly about the executive and the legislature, and devolution, will not do so until the next general elections. Meanwhile a programme of extensive legislative and administrative changes will begin. A new commission on implementation will have a major responsibility to ensure that the new constitutional order is fully established in about five years.
While we cannot explore the scheme for the transition in detail nor discuss the implementation in full, it is critical to point out a few realities. Immensely critical are the social and political processes, the interplay of economic, social and ideological interests, which influence, and often determine, the impact of constitutions. A great deal of effort has gone into crafting the PC so that its values and structures will impose themselves on state and society, with much attention to enforcement and remedies. However, the internal logic and dynamics of the constitution will have to compete with the larger social forces, the most powerful of which may have little commitment to its values.
It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s life, which they use in their daily existence, which governs and controls the exercise of state power, and which promotes the values and aspirations expressed in it. The fortunes of a constitution are shaped by many factors: personalities and elites, political parties and other organisations, social structures, economic changes, traditions of constitutionalism – and by the rules and institutions in the constitution itself.
Older constitutions were instruments of rule: by one community, class or region. The constitution recognised the dominance of that group and provided the legal basis for its rule, but did not create that rule, which was founded on its dominance in social and economic spheres. In these circumstances, the constitution was effective as an instrument of governance.
Many recent constitutions have resulted from a stalemate when no competing group is able to win an outright victory. This imbalance is often reflected in the constitution. Some constitutions are truces; the fundamental problems are not solved. Instead a framework for competing parties to work together is established (as with our Grand Coalition). Some constitutions have been made under considerable external pressure, often in tandem with key elements in civil society. The fluid political situation, which allows a highly participatory process of constitution making, results in a curious phenomenon: the imposition of the constitution by relatively weak and unorganised groups on the ruling class. But the absence of a dominant group committed to the constitution makes its implementation problematic.
Older constitutions dealt mainly with the system of government, establishing principal state institutions, distributing functions and powers among them, and providing some basic rules for relationships among them. They did not explicitly aim to change society. Today’s constitutions seek to solve social and political problems: of accountability, corruption, environment, poverty, equitable distribution of property and other resources, recognition of new and multiple forms of identity, and the democratisation of the party-political organisations and processes. In multi-ethnic societies, constitutions have also to deal with relations among ethnic, linguistic and religious communities and between them and the state.
A major obstacle to the implementation of such a constitution is that the state in a country like Kenya is the primary source of power and wealth in society. Corruption is the principal vehicle for accumulation. Since a major preoccupation of the Proposed Constitution is to safeguard public resources from plunder, the only way the ruling class would achieve its objectives is by systematic violation of the constitution, benefiting from impunities that our legal system has bestowed on them. Since the state is so dominant locally – the lasting legacy of colonialism – the question is whether those who are committed to reform of the state will be able to impose the discipline of the constitution on the ruling class, the principal and direct beneficiaries of the state. For though politicians and bureaucrats seem to fight each other, as in the referendum campaign, they are bonded by common interests as a class and will collectively resist reforms. The resilience of social traditions, ideologies, and institutions is a major obstacle to progressive social reform and change. Economic entrepreneurs, who might be expected to favour constitutionalism as the framework for the market, still seek the favours of the state and acquiesce in, if not to promote, the acquisitive state.
The viability and success of a constitution presupposes constitutionalism, a belief in the value of restrictions on power, and the practice of the rule of law, with the emphasis on rules and their enforcement. Paradoxically, countries like Kenya which try to use the constitution for social transformation lack the traditions from which these ideologies spring. This situation is aggravated by a lack of knowledge of the role and content of the constitution among those who would benefit from respect and enforcement of the constitution.
The Kenyan state was born in violence, and has been sustained by violence. Its function has been the plunder of the people and their resources. The ambition of the Proposed Draft is to turn the state towards the service of the people and the moulding of a common identity and loyalties, transcending both corruption and ethnicity. It is to be sustained by its legitimacy, not coercion.
One urgent prerequisite for achieving this objective is the end of impunity, for which an independent, committed and competent judiciary is essential. Another is the implementation of reforms of political parties, which, as in legislation now, current leaders and their followers have steadfastly violated. Most of all, we need to move away from politics as the preserve of millionaires to the birthright of all wananchi.
The new constitution is made by the people, for the people. It is people-centred, the very first article proclaiming their sovereignty, unlike the current one which proclaims the sovereignty of the president. The most essential prerequisite for success of the constitution is that the people act as the custodian of this, their constitution. They should remain engaged in the politics of constitution, with renewed vigour after the referendum. They must use the many opportunities of participation opened by the constitution, at different levels of the state, to advance the fight against corruption and against pervasive poverty. They must transcend the politics of ethnicity, manufactured by politicians to obscure the mechanics and immorality of plunder. They must hold onto the vision of a Kenya that they helped to shape, in numerous meetings and submissions over the years – of a democratic and caring society, based on inclusion and social justice, fundamental human rights, respect for cultural differences but united in our search for harmony and unity, and the common commitment to the worth and dignity of us all.
This week Kenya has defied expectations. Voting in a referendum on a new constitution was peaceful, and yet the changes this piece of paper could make are potentially momentous.Among other proposed changes, It will introduce an impeachable president, MPs recallable by their constituents, a land commission to look at historic injustices, an expanded bill of rights, a reformed judiciary. These are causes for which generations of opposition leaders have fought. It took a fraud-plagued election in 2007, in which Kenya teetered on the edge of civil war, to put this on the agenda, as a requirement of the peace deal. It is not a magic wand, but as many pundits have put it – it is a chance for a new beginning.
The campaigning has not been wholly peaceful – six died in grenade attacks at a "no" rally at the start. And the old monsters of Kenya's patrician past have not melted quietly away. Former president Daniel Arap Moi, who suppressed the first major push for constitutional reform by force, was back in his helicopter urging people to vote no, claiming the constitution had been written by outsiders and would stir up ethnic tension. His critics suspect he is more concerned about his vast land holdings, which could be subject of official investigation.
As Kenyans prepare for the implementation of a new constitution, in the expectation of a Yes vote, attention will turn to technical questions of implementation. The Proposed Constitution (PC) sets out in some detail how the old order will give way to the new, and how that new order will be made a reality. On the ‘effective date’, at most 14 days after a positive referendum result, the new constitution will come into force, repealing the old. While most provisions, including the expansive bill of rights, will come into effect immediately, some, particularly about the executive and the legislature, and devolution, will not do so until the next general elections. Meanwhile a programme of extensive legislative and administrative changes will begin. A new commission on implementation will have a major responsibility to ensure that the new constitutional order is fully established in about five years.
While we cannot explore the scheme for the transition in detail nor discuss the implementation in full, it is critical to point out a few realities. Immensely critical are the social and political processes, the interplay of economic, social and ideological interests, which influence, and often determine, the impact of constitutions. A great deal of effort has gone into crafting the PC so that its values and structures will impose themselves on state and society, with much attention to enforcement and remedies. However, the internal logic and dynamics of the constitution will have to compete with the larger social forces, the most powerful of which may have little commitment to its values.
It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s life, which they use in their daily existence, which governs and controls the exercise of state power, and which promotes the values and aspirations expressed in it. The fortunes of a constitution are shaped by many factors: personalities and elites, political parties and other organisations, social structures, economic changes, traditions of constitutionalism – and by the rules and institutions in the constitution itself.
Older constitutions were instruments of rule: by one community, class or region. The constitution recognised the dominance of that group and provided the legal basis for its rule, but did not create that rule, which was founded on its dominance in social and economic spheres. In these circumstances, the constitution was effective as an instrument of governance.
Many recent constitutions have resulted from a stalemate when no competing group is able to win an outright victory. This imbalance is often reflected in the constitution. Some constitutions are truces; the fundamental problems are not solved. Instead a framework for competing parties to work together is established (as with our Grand Coalition). Some constitutions have been made under considerable external pressure, often in tandem with key elements in civil society. The fluid political situation, which allows a highly participatory process of constitution making, results in a curious phenomenon: the imposition of the constitution by relatively weak and unorganised groups on the ruling class. But the absence of a dominant group committed to the constitution makes its implementation problematic.
Older constitutions dealt mainly with the system of government, establishing principal state institutions, distributing functions and powers among them, and providing some basic rules for relationships among them. They did not explicitly aim to change society. Today’s constitutions seek to solve social and political problems: of accountability, corruption, environment, poverty, equitable distribution of property and other resources, recognition of new and multiple forms of identity, and the democratisation of the party-political organisations and processes. In multi-ethnic societies, constitutions have also to deal with relations among ethnic, linguistic and religious communities and between them and the state.
A major obstacle to the implementation of such a constitution is that the state in a country like Kenya is the primary source of power and wealth in society. Corruption is the principal vehicle for accumulation. Since a major preoccupation of the Proposed Constitution is to safeguard public resources from plunder, the only way the ruling class would achieve its objectives is by systematic violation of the constitution, benefiting from impunities that our legal system has bestowed on them. Since the state is so dominant locally – the lasting legacy of colonialism – the question is whether those who are committed to reform of the state will be able to impose the discipline of the constitution on the ruling class, the principal and direct beneficiaries of the state. For though politicians and bureaucrats seem to fight each other, as in the referendum campaign, they are bonded by common interests as a class and will collectively resist reforms. The resilience of social traditions, ideologies, and institutions is a major obstacle to progressive social reform and change. Economic entrepreneurs, who might be expected to favour constitutionalism as the framework for the market, still seek the favours of the state and acquiesce in, if not to promote, the acquisitive state.
The viability and success of a constitution presupposes constitutionalism, a belief in the value of restrictions on power, and the practice of the rule of law, with the emphasis on rules and their enforcement. Paradoxically, countries like Kenya which try to use the constitution for social transformation lack the traditions from which these ideologies spring. This situation is aggravated by a lack of knowledge of the role and content of the constitution among those who would benefit from respect and enforcement of the constitution.
The Kenyan state was born in violence, and has been sustained by violence. Its function has been the plunder of the people and their resources. The ambition of the Proposed Draft is to turn the state towards the service of the people and the moulding of a common identity and loyalties, transcending both corruption and ethnicity. It is to be sustained by its legitimacy, not coercion.
One urgent prerequisite for achieving this objective is the end of impunity, for which an independent, committed and competent judiciary is essential. Another is the implementation of reforms of political parties, which, as in legislation now, current leaders and their followers have steadfastly violated. Most of all, we need to move away from politics as the preserve of millionaires to the birthright of all wananchi.
The new constitution is made by the people, for the people. It is people-centred, the very first article proclaiming their sovereignty, unlike the current one which proclaims the sovereignty of the president. The most essential prerequisite for success of the constitution is that the people act as the custodian of this, their constitution. They should remain engaged in the politics of constitution, with renewed vigour after the referendum. They must use the many opportunities of participation opened by the constitution, at different levels of the state, to advance the fight against corruption and against pervasive poverty. They must transcend the politics of ethnicity, manufactured by politicians to obscure the mechanics and immorality of plunder. They must hold onto the vision of a Kenya that they helped to shape, in numerous meetings and submissions over the years – of a democratic and caring society, based on inclusion and social justice, fundamental human rights, respect for cultural differences but united in our search for harmony and unity, and the common commitment to the worth and dignity of us all.
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