ISS Today: 12 Feb 2010: Isaack Otieno- Programme Head – Corruption and Governance, ISS Cape Town, Politicians from across the political divide recently reached a compromise on contentious issues highlighted in the harmonized draft constitution, with the compromise secured after lengthy political negotiations by the Parliamentary Select Committee (PSC) on the Constitution. Even the most dyed-in-the-wool pessimist might now begin hoping that Kenya could have a new constitution before the end of the year. Op-ed pages in most Kenyan publications indicate a general enthusiasm for what has come our way from the latest Naivasha process, with some hailing it as modern and progressive. The close to over twenty years search for a new constitutional dispensation will be settled through a referendum later this year.
The PSC team agreed on a pure presidential system in which the President will have the option of picking Cabinet ministers from Parliament or outside. However, those picked from the House will have to relinquish their seats. Just like in the US from where the model is borrowed and adjusted to the demands of the two sides of the Coalition, the President has to be nominated by a political party but should not hold any party office. In addition, an expanded legislature, a devolved system of government, an accountable executive, and an independent judiciary are among the key highlights of this political compromise.
The question that remains unresolved is whether the proposed harmonised draft constitution will be the panacea to Kenya’s political and governance problems. The answer to this question in the interim is negative. A new constitution will not be the answer to the governance problems that continue to cripple the country.
To be sure, even against the tide of the resurgent sense of national optimism, the dangerous triad of corruption, impunity and tribalism continue to threaten the very stability of the country.
First in the triad is the issue of corruption. This problem is as old as Kenya’s post independence history. It is a problem that the country’s political elite has failed to deal with decisively and conclusively. Billions of Kenyan shillings have been lost due to official corruption, traceable to high ranks of government offices. The multi-billion Goldenberg and Anglo Leasing corruption scandals remain unresolved to date. More recently another fresh issue has surfaced over the disbursement of Free Primary Education funds sparking fears of loss of over KES 5.5 billion. The minister in charge and the accounting officer have both refused to resign. No one is ready to take political responsibility for the emerging scandal. This issue is now the subject of yet another routine investigation by the Kenya Anti Corruption Commission. Like in the earlier scandals, Goldenberg and Anglo Leasing, not much can be expected from the ongoing investigations.
The second problem is that of impunity. Like a sword of vengeance, the continued existence of this problem contributes to the public’s low trust in institutions of governance such as the judiciary and the country’s security sector. More critically, there is erosion in the culture of respect for the rule of law. This disrespect and lack of faith in the country’s institutions of governance has led to the mushrooming of gangs such as the outlawed Mungiki, Taliban etc among many others, who operate outside of the ambit of the law. The co-existence of impunity alongside the established constitution is telling of a politically weak government. Furthermore, members of the society are increasingly taking matters of law and justice into their own hands, threatening the very legitimacy and logic of an elected government. However, the present danger lies in the fact that the perpetrators of the 2007/8-post elections violence are yet to face justice. The Kenya government is yet to amass sufficient political will, courage and moral force to take decisive action and bring to book the masterminds of the country’s worst political violence that left over 1500 people dead. Unresolved, this is another example in the long list of impunities that is like a time bomb waiting to explode.
Thirdly, Kenya continues to be plagued by the perennial problem of inter ethnic animosity otherwise known as tribalism. Kenya’s political setup is closely informed by strict ethnic loyalties and divides. Ethnicity has been politicised to the extent that it is the platform from which political negotiations are settled and political goods divided. While the Kenyan Government has created a relevant Commission to address the historic problem of ethnicity, in reality very little is being done to deal with this emotive issue. Key positions in government continue to be dished out on ethnic plates. In today’s Kenya, against the obvious lessons of post election violence that was largely fought along ethnic lines, there are some ministries and departments that remain under the command of members from the same ethnic community. The problem of tribalism is not being attended to decisively. Consequently, it is hard to see how a new constitution will resolve this.
The promise of the new constitution has led the Kenyan leadership to take their foot off the peddle of decisively dealing with the dangerous triad above. Instead of providing leadership and direction and offering solutions with regard to the here and now problems, the leadership is focused on the twin promises of the new constitutional order and the 2012 elections. The sad reality is that they are simply buying time, hoping that the new constitution will fix the problem and that corruption, impunity and tribalism will ebb away. This is politically naïve. The reality is that the new constitution will not be the answer to the existing woes of impunity, corruption and tribalism. These three problems unattended, effectively pose a serious threat to the stability of the country with or without a new constitution. Clearly, the promise of a new constitution is not a panacea to the country’s existing woes.