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Saturday, January 30, 2010

The First Principle in Drafting a Constitution

By Mwarang'ethe

Everyone is crying out for peace, none is crying out for justice (Peter Tosh)

Almost all Kenyans fervently believe that, the executive branch of the Kenyan government is the root cause of the miseries in our land. Most Kenyans are sincere in this believe. But, the few who originate and propagate the idea, it is a necessary illusion to remove risk from democracy. We deny and reject with unmitigated contempt this believe because it ignores the FIRST PRINCIPLE of constituting a just and peaceful society that must guide drafting of a constitution. Those few who originate and propagating this idea, do so as to continue throwing sand into the eyes of mankind so as to shield them from seeing the self evident truth. They continue to do so in their monstrous but, failing expectation of finding a very huge fund of gullibility in today’s men.

Let the reader bear in mind the following Kenyan prayer/anthem:

O God of all creation
Bless this our land and nation
Justice be our shield and defender
May we dwell in unity
Peace and liberty
Plenty be found within our border

In denouncing these vulgar falsehoods, we assert that, our miseries stem not from failures of the executive, but, from the gross violation of the FIRST PRINCIPLE in our constitution that must be adhered to in constituting a just and peaceful society. This first principle flows from the command of the Creator whom we call upon in the above prayer. It is this. In the Genesis 3:19, the Almighty and Eternal God, declare that, "In the sweat of your face you shall eat bread." In this, God the Almighty has declared the Natural Law that, industry, intelligence and thrift shall be rewarded with wealth and idleness, indolence, ignorance and imprudence by destitution.

What this means is this. Without intervention of any law, agreement or contract between individuals as to what shall belong to each, Nature produces in each the notion of individuality, which extends to ownership, thereby, bestowing on each person and exclusively that which he produces or creates. Thus, before any man made law, Nature begets to all men the law an expectation that he shall be able to enjoy what he produces in commensurate to labour and skills he employs. This is the law or the first principle of NATURAL RIGHT TO PROPERTY that must be adhered to in constituting a just society.

Flowing from the above, it follows and must follow that the MAIN question in drafting a constitution is not the executive or the so called representation, but, this. Does the Constitution as drafted ensure that, the government to be constituted shall be for no other purpose, but, to guarantee the enjoyment of natural right to property? In other words, is it the sole objective of the government to be constituted to recognise, guarantee and protect the NATURAL relationship between labour and its produce? If not, haven’t such a law violated the corollary principle and Divine law that, thou shall not steal? And, if we have enshrined robbery in our supreme law, haven’t we done violence to justice that we invoke as our shield and defender? And, if justice which should be our shield and defender is dispensed with violently, haven’t we then, relinquished that which must come first before we can dwell in unity, peace and liberty? Finally, having casually relinquished the right to live in unity, peace and liberty, on what basis can we pray to the Creator for plenty within our borders?

Believing the above to be true, let the reader bear this in mind. By the Natural law, no man has or shall ever willingly shoulder the curse of his brother that he can only eat bread from his sweat of his brow. It is from this Natural Law; man has and will forever resist any attempt to burden him with his brother's curse. It follows therefore, that, so as to fasten his curse on the resisting brother, the man running away from his curse, retorts to oppression. Therein, we see that the attempt by man to run away from his curse, that he shall eat his bread from his own sweat, is the root cause of all kinds of oppression devised by man against his fellow man and the attendant slavery, ignorance, poverty, discord and misery that continues to inflict our society. In short, our ability to live in unity, peace, liberty and plenty is totally and absolutely dependent upon the preservation of natural rules of appropriation.

Let us now recall briefly, the Kenyan history. When the barbarians who knew no art or trade but plunder, calling themselves silly and blasphemous names like lord Delamere arrived on our shores, the first thing they did was to appropriate our soil by the means of the sword. To prevent Africans from challenging their barbaric acts, though legal means, their lawyers who look at words like a usurer looks at money, came up with the monstrous doctrine that, public international law could only apply only to “civilised” states. Since Africans were not “civilised” to constitute a state, this law did not apply to them. With such a devilish fiction concocted by European lawyers, the fate of African soil was sealed. Interestingly, this monstrous doctrine is still propagandised to international lawyers even today, but, without the historical context of its bloody origin. However, to protect their corporate tyrannies i.e. private powers in the name of multinationals which James Madison warned will eventually demolish the experiment in democratic government by becoming “at once its tools and its tyrants,” these monstrous absurdities and unintelligent fictions are over looked. What a miserable contradiction in the name of law?

This is the key point. By appropriating our soil, they effectively reduced Africans into slaves because whoever appropriates the soil, must as the night follows the day, pocket the surplus produced by those who must labour in agriculture and manufacturing in accordance with law of rent. In other words, to appropriate land means to claim everything that must be made using its help. In simple words, those who sweat can only pocket only a small piece of the bread that is just necessary to ensure bare survival. The bigger part of the bread they bake with their blood and sweat is thereby, pocketed by those who appropriated land, but, who do not sweat. Hereby, we now see that, this LEGAL/ARTIFICIAL RIGHT TO PROPERTY which grows not from natural causes, but, by the law of fraud or what men in wigs call the law of the land is founded on the negation of the first principle of a just and peaceful society, i.e. the NATURAL RIGHT TO PROPERTY.

Having appropriated our soil, they did not sheath their sword. Still dripping with the blood of the innocent, they kept it on their hands and proceeded to engrave the law for the conquered and vanquished. As anyone knows, these first law makers and their descendants had one thing in their mind. To preserve in perpetuity the power and privilege so established. Thus, we have a law founded on oppression, upheld by force and fraud, and intended solely to preserve ill gotten power and ill gotten wealth, i.e. land so as to maintain dominion of the soil by the aristocracy so as to perpetuate slavery, ignorance and poverty.

However, since the natural right to property is ingrained in the heart of all men by their Creator, whenever this right is violated, they revolt. It was revolt against the appropriation of wealth of those who labour by those who are idle contrary to the Divine Law, i.e. negation of the first principle, which is implanted in the hearts of all men that drove Kenyans to fight to be free. Here is another key point to note. It is the origin and meaning of constitutions. Since the governing and legislating class have throughout history, sought to annihilate the first principle of society, i.e. the natural right to property as in the case of slavery, in the case of colonialism and apartheid the victims of this robbery, have always sought to guarantee against such violation via constitutions. Thus, the constitutions are not and cannot confer any rights. Their purposes are twofold. Firstly, to affirm previously violated natural rights of man. Secondly, to be a testimony to the future generations of how law makers have sought throughout history to annihilate natural rights of man and thereby, call for eternal vigilance.

Unfortunately, when we gained independence, all that changed was the colour of the law makers. The principles of oppression and plunder were left as the foundation of our political and legal edifice. Consequently, it is this unjust appropriation of wealth after the so called independence that has been the source of revolt ever since. Thus, the objective of a new constitutional order was and should be the re-introduction and affirmation of the first principle of constituting a just and peaceful society.

Unfortunately, what should have been about recovering the natural relations between labour and rewards, has been turned into matters of preservation of power by the law makers in the name of executive and so called people’s representation. It is because of these frustrations we have witnessed the unprecedented bloodshed in Kenya of late. Sadly, when men revolt without understanding fully the source injustice they feel in their hearts, they revolt in a manner that harms themselves and others in their blind efforts to correct the great injustice.

It is from this view; the violence among Kenyans and the government response we have seen of late in Kenya must be understood. So as to maintain order in a society where men are revolting against unjust appropriation of their sweat, the government retorts to barbaric means to combat the lawlessness. Unfortunately, such police measures as we have witnessed against Sabaot “rebels” and Mungiki guarantee one thing. More massacres by the police and the military of both the active participants and the innocent bystanders. All this, leaves a society drenched in blood while retarding its moral, social, economic and political developments. This goes on until the final breakdown. Kenya has now entered this vicious cycle and it seems appropriate to warn that this new constitution may be the last trumpet. If it does not address this first principle meaningfully and comprehensively, all other “reforms” shall be in vain and we would have reached the end of road as it concerns peaceful reforms.

Thus, let us stop chasing shadows looking for the cause of our tribulations. We need only look at political institutions that were originally founded by the sword and have since been maintained by the sword of the majesty, injustice of the judge and an army of black myrmidons. Unfortunately, these institutions can only breathe hatred, discord and bloodshed. In simple words, as long as we seek to maintain principles flowing barbaric aggression, mutual oppression and plunder decreed by dead mad men whose highest and most noble vocation was slaughter of the innocent, using the hocus pocus and the mystic interpretation of law by lawyers, we shall be forever be tormented by open theft, fraud which destroy confidence which makes men act for themselves alone, instead of mutually exchanging their services and goods in mutual exchanges which is the basis of order in society and not police.

We reiterate that in the face of reason and facts, the imposition of artificial or legal right to property or that idle coinage of the brain which has no basis in the laws of nature, which therefore, violently overthrows the natural right to property, is the root cause of the Kenyan mess. It must be the root cause because it servers the NATURAL CONNECTION between LABOUR and its REWARDS. This artificial right to property creates a class of idle rich men who are not inventive. More so, since their natural wants are already met, and are idle, out of their low imagination capacity they come up with fancy and unreal wants and expensive vanities to meet their whims. Unfortunately, since they occupy the highest positions in society, their love of expense sets the fashion or the example which is copied by those below them. To copy these idlers is the beginning of corruption which eventually corrupts the whole society as it falls into vice and crime.

In conclusion, what we have sought to explain is this. Law makers are only known to invent new taxes and only conquer the pockets of their subjects. It is for this reason; they have diverted the need for reforms on right of property into creation of offices which will preserve their power (read 349 mps idle mps to be paid by those who labour). However, on our part, we insist that, the distribution of wealth in terms of wages, rent and interest which is the most critical issue in the stability of a nation should have been the priority. Without addressing this matter, we shall still be with a governance system dedicated to unjust appropriation of wealth of those who labour. From this parent theft, it shall surely flow all the theft, fraud, all vanity and chicanery that shall surely torment Kenyans worse than a pestilence and famine. This is because, it is impossible to violate the decree of the Creator we call upon in our national prayer with impunity.


King Charles said...


From someone who has previously lauded absolute socialist principles (to some extent, communist), I find your beef a little bit unsettling. In my view, the mantra 'in the sweat of your face shall you eat bread' couldn't be more capitalist. But that's for another day.

Now, it's important to determine which came first; our national anthem or our current constitution. I think the very idea of constitution making preceded the composition of our national anthem. It follows therefore that our constitution, barbaric as it is, cannot be construed to necessary espouse to reflect the lyrics of our national anthem. One could argue that it's actually the reverse. But that's a none ending discussion.

Now to the grit. Your entire premise on the right to property, first principle i.e., seems to find reliance only from a Christian biblical verse.... and of course, the 'fact' that we 'now civilized folk' must adhere to the first stanza of our national anthem. This is all well and good, however, for someone who feigns nostalgia of times before the barbaric arrival of Lord Delamere and various missionaries, how and why do you choose to define your basic argument by relishing foreign religious ideologies?

You will come to find that African culture, as it were, in the very list acknowledged the reality that all humans are not created equal (equality in the sense of abilities). As you can see in Kenya today, we have a disproportionate amount of lazy folk and the coast and equally an industrious lot in central Kenya. No offense to the Miji Kenda and or Kikuyu...I'm just trying to make a point. That said, how then can the paramount principle in constitution making, for a country like Kenya, be the protection of individual property? Isn't that a distortion of natural law? My friend, even in the wild, the lame-not-so-fast hyena gets a piece of the kill. It is that mangy hyena that requires protection enshrined in a constitution.

As such, if a constitution is fabricated to protect the citizen, all citizens in this case, it's basic principle must be the redistribution of resources for the benefit of all citizens as opposed to the protection of individual personal property (I'm not talking about your black and white TV and black mamba bicycle; I'm sure you understand).

I agree with your observation that those who now draft the constitution (PSC et al) do so solely for their self preservation. What I disagree with is that they should do so for 'YOUR' preservation. Me thinks they should do so for the preservation of ALL CITIZENS. Does that make any sense?

Clearly, NATURAL LAW cannot be based on the biblical proclamation that you must only eat what you sow. For the continuity of mankind and propagation of society, NATURAL LAW exudes the principals of 'sharing/helping' your fellow man (taxes/redistribution of resources). That, to me, must be the first principle in drafting a constitution... unless of course the goal is to propagate an inbred society. Which of course is not the case.

Mwarang'ethe said...

Anonymous wrote:

Your entire premise on the right to property, first principle i.e., seems to find reliance only from a Christian biblical and why do you choose to define your basic argument by relishing foreign religious ideologies?


It is amazing how you are failing to connect this article and the previous one. Since it seems u have not read the previous one, this is what we wrote:

"Among the African, Red Indians, Maori of New Zealand, Aborigines of Australia, the traditions and customs of right to land/natural resources are these. Land is a gift from the Creator and therefore, a common property. This meant that, one could farm, graze his animals and hunt on the land freely. However, the fruits of one’s labour, i.e. his millet, his cows, goats etc and the dear he shot, were his private property. This was a remarkable distinction between common property and private property which a modern lawyer and a philosopher has no clue."

So, even if you remove the Bible, we shall end up in the same position. A clear distinction btw. common property and private property. Simple and clear.


Anonymous wrote

As you can see in Kenya today, we have a disproportionate amount of lazy folk and the coast and equally an industrious lot in central Kenya. No offense to the Miji Kenda and or Kikuyu...I'm just trying to make a point.


We know thy argument very well. However, this argument is extremely silly, for it fails to appreciate a fundamental truth.

The benefits of nature and the advantage of being part of a community, fall upon mankind in vastly different degree depending on the precise position of the land in geographic sense a man occupies.

Having said this, u must take into account this unassailable fact. The immense superiority of land in the city, or near the city compared with any rural land is almost entirely due to proximity the land near or in the city affords to the market of the world in which to obtain the cooperation with the rest of mankind.

Now, since Kikuyu's are near the city, their land is more expensive for the above reason. Consequently, a Kikuyu has the ability to take the large amount of "equity" in such a land and start a business than a rural Digo can. Under such circumstances, there is no equality of opportunity and free market fails miserably and equality gets its tap root.

And, if you wanna see how this happens, just jana we read this:

"Tussle over who should buy Sh1b Koinange family land goes to court." @

So, how does a Digo start competing with these people? And, what have they done so much to this land to get KES 1 B?????

U have eyes but u cannot see the obvious.


Anonymous wrote

For the continuity of mankind and propagation of society, NATURAL LAW exudes the principals of 'sharing/helping' your fellow man (taxes/redistribution of resources). That, to me, must be the first principle in drafting a constitution... unless of course the goal is to propagate an inbred society. Which of course is not the case.


Once again, we advise you to read our previous post as to the origin of these so called "redistributive" taxes. It is not enough to hear about these taxes, it is very important to trace them to THEIR SOURCE.


Anonymous wrote:

From someone who has previously lauded absolute socialist principles (to some extent, communist), I find your beef a little bit unsettling.


U may have heard these words, but, you have never bothered to investigate their true meaning.

It is easy to hold an opinion, but, it is difficult to think. U better find out the meaning of these words before u accuse Mwarang'ethe being a communist or such nonsense.

Anonymous said...

GAI!! NOt again.

Anonymous said...

Pass the pop corn - Cerebral lazines exposed for what it is & exactly what did he mean by coast people are lazy thought we were beyond the fallacy of the " hard working " lot.

Mwarang'ethe said...

Let us very briefly revisit what King Charles tells us are "redistributive" taxes.

We shall use UK statistics:

Taxes as a % of Gross Income
All households, quintile groups (2002 -3)

Bottom 2nd 3rd 4th top

Direct tax 9.5 12.2 17.0 20.4 23.7

Indirect tax 28.5 20.1 17.7 15 11.3
All taxes 37.9 32.2 34.7 35.5 35.1

Source: Simon Briscoe, Britain in Numbers, London: Politico's 2005.

Now, here we see the originators of the so called redistributive tax. What is crystal clear is that, the POOREST pay more tax than the RICHEST.

And, if you wanna see how this redistributive nonsense they teach you, here is the latest headlines from the BBC:

"Rich - poor divide 'wider than 40 years ago.'


Who is the author of this report? The UK Government.

Anonymous said...

Mwarangethe finds his match, is beaten 10 to naught and results to hitting under the belt...see this; It is easy to hold an opinion, but, it is difficult to think..yada yada

Does Mwarangethe think he holds a patent and IP rights to think just because a few KK guys has lauded his daily land whins??
Anon 12:12 PM makes lots of sense and talks like someone who has read books and lived the life while Mwarangethe is still reading many communist books.

Many kudos go to anon.


Anonymous said...

^^typo; hitting below the belt...

Anonymous said...

^^Ooh, its the mighty King Charles i refered to as anon....go go King!!!!

Anonymous said...

I couldnt agree with you more.
Just look at the story below. It animates a bunch of concerns you continously flag here.
Dont stop talking!

Obama's Ruined Homeland

Anonymous said...

Mwarangethe, what would your draft be like if at all it was to incorporate the ideas you spread here? Make it as simple to understand as possible so that even the laymen can read it.

Anonymous said...

Neither is land nor a brand new constitution Kenya's panacea as some want us to believe. Our youth must be encouraged to invest elsewhere and not just on land which we seem to be obsessed with as a nation. I also think there should be a cap on how much land one person can own, maybe a maximum of 10 acres? Maybe it's time the Kenyattas/Mbiyus/Mois/Kuleis/Delameres/ etc started shedding some of their huge tracts of land which is mostly idle to the squatters and IDPs of Kenya. Why would anyone want to own 10,000 acres of land and then leave it idle? Where is "reformist" Orengo to heavily tax all this idle land, most of it illegally acquired at the expense of Kenyans? I hope these greedy land barons will one day realize that all the land they will need in the end is a small patch enough to fit the coffin!

Mwarang'ethe said...

Anonymous said...
Neither is land nor a brand new constitution Kenya's panacea as some want us to believe. Our youth must be encouraged to invest elsewhere and not just on land which we seem to be obsessed with as a nation.


Is this not exactly what we have said? Please follow our arguments very carefully.

The only way to ensure people do not invest in land (remove land obsession), so as to gain wealth without working like Koinange's,and Kenyatta's and thereby dominate us politically is to take that rent (public revenue) and use it to fund govt.

When this is done, then, remove completely, or drastically reduce tax on wages, capital and consumption. Thus, those who work hard will be rich and not those who monopolised land.

When that is done, only a mad man will invest in idle land. This will ensure that, Kenyans with capital will only acquire land so as to invest in manufacturing/developing it so as to be able to raise rent and make profit from their labour. By doing so, we will create jobs and wealth that we desperately need.

Simply, people will not move out of land and invest in wealth creating activities without the reforms we have proposed.

As concerns limits to land sizes, that will not work and has never worked. Let people hold as much land as they want, but, one one condition, pay rent at the end of the year. When that is done, two things will happen:

(a) Those who hold idle land will relinguish it to those who can develop it.

(b) Alternatively, they will develop it. Developing this land will create millions of jobs.

Injeraz said...

No one should be forced to share what they have worked hard for with someone else. Thats insane. Can i come to your job at the end of the month and DEMAND a certain % of your salary when Ive just been sleeping at home the whole month?? Distrubution of resources should only be covered in taxes, hii mambo ya grabbing from "successful" regions by force to redistribute is unworkable. Poor regions should work on improving their lot instead of waiting for handouts or forcing other regions to "share."

Anonymous said...

A constitution should serve those who live within its Jurisdiction in a just manner. Protect all, bearing in mind that the weaker need more protection/assistance. A team of anything is only as strong as the weakest member.
Personally, I propose that a major priority for a constitution is to generate intruments of fair play for a defined society incorporating the necessities of this soceity.
The most progressive ( economically) soceities at the moment are vague of democratic principles ( China, Middle-East) and why is it so?
Democracy will only lead to better economic growth in Kenya only when a substantial Middleclass is created!!
And that is why, on my opinion, The first principle in Drafting a constitution should be ; Wealth creation for all.Those with wealth should be able to preserve and those without should have the fair ability to be wealthy , their sweat should be recognised and protected.

Anonymous said...

We want an independent Judiciary. Why give the president the mandate to appoint it?

We want an indepent parliament. Who will run it independently without interferance from Executive.

We want the powers of the president to be cut. Who will stop an African tribal corrupt president to manipulate cabinet, parliament and judiciary?

We need to strengthen political parties first. Quality instead of quantity. NO tribal coalitions!!!!
No party with ideology should be registered!!! Only 3 parties should be registered for national posts.

Democracy works only if citizens are intelligent. Kenya is far from it. A pity!!

John Maina said...

Agree with you that there will be little achievement or changes to the Kenyan governance as the constitution end product will be predictable, short-sighted, self-serving and disempowering the masses.
Was shocked by the proposals to lessen women’s role, undermine the senate role, retention of PC’s , corrupt judges, and AP’s
Only a fool should expect drastic changes.

Taabu said...

Former UN boss Boutrous Boutrous Ghali of Egypt once predicted that the thrird world war will be fought over water. Extrapolate that and you are left wondering whether we will be always fighting (post 2007) over land.

Well, if making the presidency less attractive would cub corruption/cronysm, then less glorification of land would be the silver bullet to reducing the destrcutive tension this assest causes.

Anonymous said...

"Only a fool should expect drastic changes."
Good observation.
Does England have a constitution??

shaka said...

The draft constitution in its present form will not change anything in Kenya.Infact the PSC proposed draft will lead us into war.In drafting our constitution we should attempt to answer questions as to why we fought in 2008.We fought due to unequal land distribution in Kenya.Land inequality in Kenya was brought about by the Kenyattas using their positions.Moi followed in the footsteps of Kenyatta.We needed a preseident who will not misuse his power.We have seen ministers,the president and parastatal chiefs break the law in appointments and nothing has been done to them.The culture of "UTADO".If the president breaks the law in Kenya nobody will raise an eyebrow for fear of being killed like it happened to Pinto,JMK and Robert Ouko.If you are not killed you will be isolated politically or worse off businesswise.Kenya has reached alarming levels of impunity.We needed a constitution that will safeguard against impunity.
We fought in 2008 because the smaller tribes in kenya perceived that the biggest community had had an opportunity to eat(an in deed ate) from 1963 to 1978 and from 2002 to 2007 and needed to move the presidency to another community to attempt to correct the imbalance.The new constitution has proposed a 50% plus 1 rule.This does not take into account the smaller communities interests.The presidency has been given to one community for life!!They will use their wealth to buy one or two more communities and eternally keep the presidency.Some people may argue that this is democracy but realistically that will cause discontent and may lead to civil strife and talk of cessation.
We need clauses in the draft to ensure that the president is supported by most of the 42 communities.If this does not happen, I guarantee that we will fight again.
We have allowed ourselves to be manipulated by the kenyattas,odingas,kibakis,mois in conning us in the name of consensus.

Anonymous said...


First of all, thanks for your personal take on - "The First Principle in Drafting a Constitution".

Don't forget to give credit where it's due. Peter Tosh plagiarized that famous line from many other ancient sources dating back to the 5th century.

Peace and Justice go together and neither can be maintained without the maintenance of the other.


PEACE cannot be attained without ensuring JUSTICE and above all EQUALITY for ALL.

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