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Constitution Making From The Middle

By Judith Achieng', IPS, 16 February 1999

Nairobi, Feb 16 (IPS) -- A new book has highlighted the plight of the Kenyan civil society whose efforts to bring about costitutional reforms have met with obstacles from president Daniel rap Moi's ruling Kenya African National Union (KANU) party.

Written by human rights activist Willy Mutunga, the book takes the reader through Kenya's political metamorphosis right from the days of Me Katilili, a Kenyan woman freedom fighter earlier in the century, delving into early examples of the persistent pro democracy movement in Kenya by the middle class or the so called petty bourgeoisie.

The book also outlines the political expressions of change through armed struggle before and after independece from Britain in 1963, followed by a retreat to pro democracy constitutional and legal forms of struggle in the early and mid 1990s, spearheaded by the Law society of Kenya which forged alliances with other civic and regious groups.

With the words "you can kill the messenger but never the message" in dedication to hundreds of political activist killed under Moi and his predecesor Jommo Kenyatta regimes, the book, Constitititon- Making from the Middle: Civil Society and Transition Politics in Kenya 1992-1997, sets the scene of Kenya's most turbulent and violent political period.

Among other things, Mutunga tells in the book how, the Kenyan middle rose to defy despotic rule in 1990s at Kamukunji, an open patch of ground situated in Nairobi's shanty villages of "eastlands".

In the colonial period, Kamukunji was the meeting point for railway and other African workers where independence debates would take place. "It was therefore no accident that the pro democracy movement in 1991 defied the Moi-KANU regime's colonial repressive laws at Kamukunji," he says.

"Kamukunji now represents in every Kenyan town, an institution of resistance against any form of dictatorship. When people meet at a Kamukunji it means "Not yet democracy"", he says.

Mutunga argues that the current constitution, designed in Lancaster, Britain just before independence is unsuitable for Kenyans because it was advanced from the state, leaving out civil society and the people below. He challenges the Kenyan society to go a little lower and write the constitution for themselves.

Some of the issues which have been a subject of much controversy in this East African country's constitution, include the excess powers accorded the executive headed by the president, interfering with the normal functions of the other two arms of the govenment, the legislative and judiciary.

Also of particular concern are sections which are yet to be harmonised with international human rights instruments, including the Universal Declaration of Human Rights adopted 50 years ago.

"The story is about the potential and limits of the role of civil society in promoting fundamental political and constitutional change," says proffessor Yash Gai, a professor of publicl law at the University of Hong Kong in the introductory pages of the book. "It tells of the struggles of the Citizens Coalition for Constitutional Change," he says.

The Citizens Coalition for Constitutitonal Change or the 4Cs as they later came to be known, a movement formed in the early 1990s by a group of Kenya intellectuals to push for political change has been the centre of influence in Kenyan politics , taking credit for successes such as the the end of the oppressive single party era in 1992.

But Ghai quickly points out that the 4Cs failed in in terms of ensuring a fair and transparent framework for elections, a formula for transition of power, and securing the adoption of minimum constitutional reforms by Moi's government, now in its 20th year in power. "Indeed the conclusion of the author, which seems to be shared by some other key leaders of the movement, is that in these respects, they failed," he says.

With a fragmented opposition, Mutunga says in the book, the Moi regime has suceeded in "seducing the 4Cs, outspoken religious leaders and the foreign community to his gradualist approach of diffusing the movement which had begun to build such momentum from serious reform.

Critiqueing the book, Julius Nyang'oro, a proffessor at a Kenyan university says, "Stripped of spy intrigue, the story on constitution-making in Kenya is a story of how the Moi regime has been able to outmanouvre and outflank the forces that have been pushing for constitutional reform in Kenya."

"Mutunga has eloquently presented a case of flabby middle which can be manipulated by the state and whose connections to the state actually makes it the least describable class to demand change."

Indeed, this view is reflected by Moi's comments last week that it was a "great mistake" to allow civil society lobby groups to control the ongoing constitutional reform debate. "I feel we have gone wrong. How can members of parliament surrender their mandate to those who are not elected," he said.

Mutahi Ngunyi of the Series of Alternative Research in East Africa Trust (SAREAT) in Nairobi which launched the book jointly with Zimbabwean based Mwelekeo wa NGO (MWENGO) describes the book as "a trustworthy account of constitution making as Burgeous politics in East Africa".

Leader of Kenyan opposition, Mwai Kibaki said the new publication is a "timely history, written by people participating in the process of change in Kenya". "The book makes us reflect on the process of constitution making as a project for all Kenyans," he said.

Opposition parliamentarian Peter Anyang' Nyong'o sees in the text of the book a good history though not good sociology. "a daring text and timely. Sets some records straight in a very bold manner, here of course we shall continue to debate, and Willy has challenged all of us to put pen to paper so that the future generations will one day learn about what we did and didn't do," he says.

Launching the book in the Kenyan capital, last week, South Africa's first lady Graca Machel, who is a patron of Mwengo said Mutunga's book poses a new challenge for all non governmental organisations in the region to work together and solve Africa's problems. "Civil society cannot remain spectators to an important even like this, (constitution reforms). This means that there is more need for NGOs to work together," she said in her speech read on her behalf by Forum for African Women Educationists (FAWE) director Eddah Gachukia at the book's launch in the Kenyan capital, last week.

"We have knowledge in this continent that can take us out of the problems we are facing," she said.

But despite the optimism of a new constitution, the beating by police a fortnight ago, of some of Kenyan opposition politicians at a parliamentary poll, to some, is indication that democratic rule " may not come only as a result of constitutional change. "Constitutitonasl change is a waste of time for Kenyans, if we are dealing with a government which has no respect for the rule of the law and constitutionalism," said outspoken parliamentarian James Orengo.

Origin: NAIROBI/HUMAN RIGHTS-KENYA/

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