The heart moving submission to building bridges initiative by Prof Yash Ghai

Prof. Yash Pal Ghai’s Submission to the Building Bridges Initiative Task Force Committee

There is no doubt that Kenya is in a deep trouble which gets worse by the day.
Methods for wide consultation and agreement are needed: not just with politicians, for that could amount to little more than horse/money trading without long term commitments, as some of the discussion so far has largely confined itself to.
With whom are consultations conducted: and what is the nature as well as basis of the consultations? Questions were raised by some groups of the legal basis of the process.
Areas identified by the President and former Prime Minister in their formal statement are certainly causes of the problems (political, economic and social) but they are not exhaustive and a survey should be made of other problems (and consequently reforms). I will refer to some of these. In my own assessment of how far we Kenyans have moved to, I would test by reference to the 2010 Constitution. My view is that if we had followed the Constitution we would have avoided most of our problems.
I will deal first with nine points of the President and the Former Prime Minister:
1. Ethnic Antagonism and Competition
The relationship between ethnicity and politics was more or less forced on Kenyans (racial or tribal) by the colonial power. Unfortunately after independence we had few leaders who transcended ethnicity. Since independence, ethnicity has moved into other areas as well, e.g., housing, business, even universities.
CKRC and Bomas tried hard to move ethnicity out of politics, while maintaining its cultural status—of which we are proud as Kenyan. The Preamble of the Constitution says, “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one, indivisible sovereign nation”. As you will know, Kenyans fundamental values and principles are summarised in Art. 10. The foremost is “patriotism and national unity”—in this there is no place for ethnicity. Art. 27 (in the section on human rights) prohibits discrimination on grounds of ethnic origin. For us, the most relevant statement is in the chapter on the electoral system (Chapter 7), particularly in its rules about political parties (Art. 91). Relevant to us are: (a) every party must have a national character ; (b) respect and uphold national unity; (c) respect the right of all persons to participate in the political process, including minorities and marginalised group. All these provisions are founded on the character of political parties, which must NOT be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. Nor can a party engage in bribery or other forms of corruption. I have explained these rules to the Registrar of Political Parties and the Boards of the two IEBCs—without any effect what so ever. So what to do?
2. Lack of National Ethos
There is nothing really different in this section than in the previous one. It is true that our reputation abroad is often rather negative—but often the figures on integrity, fairness among different communities, and thefts are pretty high. Our police have a bad reputation—both abroad and locally, and the Government does little to remedy matters. Corruption is absolutely regarded locally and abroad as the forte of Kenyan politicians, civil servants and the business community. Something to be discussed under section 7, except to say now that the remedy again is in the Constitution.
3. Inclusivity
Here again the answer lies in the Constitution approaches outlined above. It is not a product of the “political system”—as I have indicated above, it is the product of politicians, usually achieved by violations of the Constitution. The Constitution does have a political system in numerous Articles of the Constitution, particularly as regards elections, notion of equality and human rights more generally (see for example Article 47), chapters on the legislature and the executive, and most of all the judiciary, which are so much geared towards fairness. If the political system as specified in the Constitution is followed, we would not have the problems outlined here. In many respects, the fault lies in the politicians’ love of ethnicity—with which goes towards the vote, whatever the damage—to other.
4. Devolution
The analysis of devolution is fair. If anything one could be a bit critical of the conduct of its officials, including even Governors. But one must appreciate that the system is new and that there are big variations among counties.
It should also be noted that the system of devolution is not as devised by Bomas, which would have created three levels, with the second one (maximum of 14 units) with considerable resources and experience. There is some value in the re-consideration of the Bomas proposal—and which the Right Honourable Odinga is well versed.
5. Divisive Elections
This issue has already been discussed above, and there is nothing to add. The system could be improved in some ways, but the key point is integrity. Fraud engineered by candidates is the hall mark of our system, at all levels. A large number of lives are lost. It is not the system, it is the candidates.

6. Safety and Security
A great deal more needs to be said, and done, about the failure of the State to ensure safety and security. For the simple reason that the groups in charge of safety and security are among the worst offenders—even to the extent of killing harmless kids in the slums. Nothing is done to deal with the police-killer though he is well known. It is important to see police activity from the perspectives of the poor and vulnerable.
Here again we can turn to the Constitution. The chapter dealing with this matter is termed: National Security. Just let me introduce you to the first article:
“Principles of national security” as follows (Art. 238)
1. National security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests.

2. The national security of Kenya shall be promoted and guaranteed in accordance with the following principles—national security of Kenya shall be promoted and guaranteed in accordance with the following principles—

(a) national security is subject to the authority of this Constitution and Parliament;
(b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms;
(c) in performing their functions and exercising their powers, national security organs shall respect the diverse cultures of the communities within Kenya; and
(d) recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.

7. Corruption
Corruption has been with us for a long time, since at least the British. In a terse way the paper sets out the dimension of corruption—and its impact. It is an old problem, but was dealt with in a constitution only in 2010. A whole chapter is devoted to it as Chapter Six, called Leadership and Integrity. It is the finest anti-corruption and public service chapter I have seen in any constitution. So surprisingly the Kenya elite pays no attention to it. What is a standard officer to do:

Hold a public trust to be exercised in a manner that-
(i) is a public trust to be consistent with the purposes and objects of this Constitution’
(ii) demonstrates respect for the people’
(iii) brings honour to the nation and dignity to the office; and
(iv) promote public confidence in the integrity of the office; and
(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.
The rules by which state officers are to conduct their office are quite demanding—and include personal integrity; objectivity in decision making; selfless service based solely on the public interest; and accountability to the public for decisions and action.
Needless to say, very little use has been made of this chapter, and the courts too have been a little hesitant to follow it.
8. Shared Prosperity
There are indeed gross differences in the prospects of Kenyans. Some live below the poverty line; recent figures show that the poor of the country are close to 50% of the total population. As far as I know (being a regular visitor/friend of ‘slums’) the levels of deprivation are unimaginable. What excuse does the Government has for this inexcusable differences for the lives of the rich and the poor. I was pleased to read in the official statement, that every level of government should be pressed to properly integrate and lift out of poverty”.
9. Responsibilities and Rights
The overall objectives of the Project are heartening and encouraging: “Kenyans must have their human and civil rights respected and enforced. There is no Kenyan whose rights should be compromised no matter the interests against them.”
These goals are valuable; attainable if we commitment ourselves to achieving them. Kenyans are hardworking, enthusiastic, caring that we should be able to meet these goals. We need to move away from not only ethnic distinctions but also distinctions of the rich and the poor. These distinctions do not go together as we know.
As a student of our Constitution and its goals, and knowing of the enthusiasm and energy of our people, I am confident that we can achieve the goals of the equality and oneness espoused by our most distinguished politicians and caring leaders.

Yash Ghai
8 May 2019

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