Guest post by Lucas Mboya
For some reason. We, Kenyans have believed...fallen for the hype that a new constitution is the panacea for the problems bedeviling our nation.
Much as I can see the need for change and a re-examination of our constitutional dispensation, I have a certain unease with a new constitution and the promises it offers. I do think that our real problems are far more related to the loss or erosion of our values than to poor legislation and outdated laws.
There is an inherent and very real danger about the way that we are approaching this issue.
African and indeed our traditional values, honesty, sincerity, hard work, generosity and more have been under attack by the advent of capitalism for the last 50 odd years. Constitutions worldwide have been adopted as the best way to ensure the proper functioning of a nation and or republic and the equitable distribution of resources as well as the inalienable freedoms of all people, the right to create wealth and many other checks and balances in a free society.
But try as I might I do not see how better legislation will improve our values. Values can only be instilled. They cannot be legislated. Legislation may be there to guard our collective values as a nation and can be improved and moulded over time to adapt with the fast changing pace of life....but can never be a substitute for an inherently good value system.
Japan is a wealthy country and one of the most ancient civilisations on earth with what would undoubtedly be one of the most diversified and vibrant economies on earth. We associate this country with good governance and all that comes with it. But I want to point out that despite laws being in place for the detection, and effective prosecution of crime and more so in this vein corruption, those implicated in the same often choose to take their lives.
This stems from a deep seated sense of justice in society ,such that one who has gone against the ‘moral code’ even in a moment of weakness finds more ‘honour’ in self inflicted death than the indignity of a public trial. I use the example of Japan because it also has in its constitution a official dynasty, in fact the very one that unchecked, 50 years ago, led to their involvement in the second world war and their subsequent ‘punishment’ by the USA being the only country to date to have seen the devastation of atomic bombs.
The point I am making is that it is very dangerous for us to put more reliance on a constitution, than on our own moral and ethical codes. Why limit ourselves to what is written in law. Shouldn’t we have in all of us our own ‘law’ that has a higher bearing on how we live than a written code?
What did Jesus tell the Pharisees when they accused his disciples of ‘working’ by ‘harvesting’ on the Sabbath day when they ate grains of wheat from the fields as they walked. Laws are made for man not man for laws. Let the overriding law be that in our own values rather than a constitution. It’s safer that way. A constitution or law should never be superior to your own value system. They should work in tandem to create a cohesive society. But your own values come first.
More so. In trying to find the ‘perfect’ legislative environment we run the greatest danger of alienating ourselves community from community, region from region than ever before.
Comments attributed to a number of Mp’s recently show what a deep seated problem we have. Some from both Rift Valley and Central province (not limited to) have openly said the next president should be from their communities/regions. With what has so recently put us at each other’s throats and a new constitution in the offering which advocates albeit in a ‘sober’ tone, the much discredited ‘majimbo’ system, are we not as Kenyans putting the cart before the horse?
Doubtless some will argue that a new constitution guarantees the equitable distribution of resources so it’s a prerequisite to the next election but who and what guarantees our morality? Laws have been broken before and will again.
Additionally we have complained that the current coalition is bloated and a drain on public resources. Pray what then is this new Constitution? Have we honestly looked at how multi layered it is and considered the cost of implementation of the required changes to our governance. More important to me though, is that while our priority right now should be how we can become more cohesive as a nation and rediscover our sense of patriotism from which possibly the seeds of a better value system may be sown, we are busy discussing a document that will undoubtedly divide us more along ethnic and community lines than ever before.
While I agree that changes and reform are necessary I would much rather an incremental change (amendments) to our current constitution that would allow us to go to an election as a unified nation and continue with the process of constitutional reform and or change after that point. Not to mention the fact that a referendum is still an option that would put more strain on our national psyche than we can now bear.
We have yet to identify and try the masterminds of the post election violence which will open up old wounds, the TJRC is supposedly underway, more and older wounds, a referendum possible, new constitution, then an election in 3 years time. Isn’t this too much to bite, chew and swallow at one go considering that in 2012 most of these will still be underway?
Rather than try to enter a long treatise for which in neither qualified nor inclined. I urge my fellow Kenyans, citizens to examine, not the new constitution but our own society and ask whether legislation can bring about or indeed is the appropriate tool, to bring us to the point of a new moral and ethical awakening which is the only sure way our guaranteeing the future of this nation.
As for me my view is that this effort is too little too late. I do not think it is the answer to our problems.
All things considered. I respect the fact that many will disagree with my position. Time will tell.
The writer of this post, Lucas Mboya is the son of the late Tom Mboya.