Why I support the Proposed Constitution of Kenya

The 1897 order in council opened the application of common law in Kenya. it stipulated that in addition to the statutes made by the colonial administration, the common law of England, equity and statutes of general application would apply in what is now Kenya subject to the local conditions and the customs of the people.

The consequences of this were deep and continue to affect us to this very day. It created and concentrated power in a Center – colonial master, whose purpose was to exploit the resources in the colony for the west. Laws and policies were made to make this possible as a result Africans were striped of their only source of livelihood. Land was legally confiscated; people were striped of their dignity and virtually turned into tools to service this purpose. Institutions were created in line with this general goal thus both the Judiciary and police, the legislature and general administration which divided the country on tribal lines proved very effective.

At independence there was great aspiration that a change will benefit Kenyans. What we got was a reversal of roles rather than the order. We got coconuts – black on the outside but white on the inside, which mastered the system and continued exploitation of the country at the expense of the Kenyans. Inequalities got to the apex, power became a necessity to maintain the status quo. Poverty and corruptions became the hallmark of our society triggering a move from many on the on the margins to fight to be included also.

In the PCK I see an attempt to dismantle this unjust machinery to set a new order;

1. Fragment power and spread it to the margins, this goes with legal mechanism to share these resources away from the center.
2. It also brings those previously pushed to the periphery into the center with a voice and their interest attended to.

The PCK does this in three main ways;

a. Governance is restructured

Clear distinction in made between the Executive, Legislature and Judiciary and power is thus vested in all these institution to serve the people of Kenya.

Creation of County governments and the Senate further spread power to the grassroots enabled to check and advise the national government with the local interests in view.

b. Popular representation not only in numbers but texture. This way it has invited those on the outside IN. Communities are given visibility and space to participate, women’s participation has been guarded and their voice will now be present.

c. The dignity of Kenyans has been made central as indicted in the purpose for the document, the declaration of the sovereignty of the people of Kenya and to a greater extent the BILL of RIGHTS. These in my opinion will ensure equal opportunities for Kenyans through out the country and at all times.

As a Christian leader living in a society that holds social ethics incoherent in some ways to ours, I obliged to discern ways to engage in this society and therein be salt and light. It begs me two questions to resolve this:

1. Should we impose our social ethics in the Society we live in and ignore the position of those we share the society with despite their faith? One must be reminded that the grounds for which it is demanded of us to live in this Christian way, is because we have received Grace. Should we criminalize sin? Rather should not our quest be how to influence our society be through undermining its values to the extent that they are aligned to ours. Our primary concern should be how we live out our social ethics in this society. Our demand of the constitution therefore should be latitude to live out our ethics, put differently does the constitution give us space to practice and influence our society as stranger-insider?
2. The ends we seek that will determine the nature of laws the country will have. To guide us here we ought to pose these two questions;

i. What should we do? This will ask of us and the society questions of rules and therefore actions leading us to prescribe laws that all should adhere to and the does and don’ts. We would need to enforce the rules through punishment and coercion. We risk ‘talibanising’ our country and taking away peoples right of conscience.

ii. Should we rather ask; who should we be? In a multi-faith context asking these questions we will be seeking our foothold among competing values. This should lead us to question about Character, inviting us to live out our values and norms intentionally in the society with the purpose of inviting those outside the kingdom in through persuasion.

The context of writing this constitution should inform our current discussions. We are between post election violence that crippled this nation and a potentially explosive conflict if we do not urgently address the things that created the conflict in the first instance. We must coin ways of addressing issues of governance, dignity through rights of the people of Kenya and representation i.e. inclusiveness of all who have been out.

I am satisfied that these hotspots have been adequately addressed in the PNC and would highly recommend its enactment!

If NO vote won!

We shall have lost a chance to restructure our governance framework. The 2008 act which entrenched peace accord and created instruments for changes did not envisage the rejection of the constitution by the people. The CoE’s role ended when they gave the proposed constitution, both the IIEC and the IIBC and TJRC mandates expire in December. There will be need to set up new vehicles to address the constitution rewriting so as to address the contentions and conduct referendum.

The choice we have to make is between the current constitution and the PNC, not the one we probably wish to have! The aftermath of 2005 should be instructive, for if we loose political goodwill to carry out the changes we hoped for it will be a huge struggle to gain it, the political class in whose favor the present constitution leans would want to continue.

The impact of the failure to pass the constitution will precipitate an unprecedented competition and the ensuring conflicts may be greater than we have ever known.

We may never succeed in time for a general election which we will have to go to with the old constitution without an electoral commission in place already.

The possibility that there will be introduction of vertical and horizontal Checks and Balances especially with the entrenchment of key constitutional commissions to give Kenyans value for money and check impunity and facilitate a new culture of governance under a more clean, lean, effective, accountable and responsive government because the sanctions for violations of the rules shall be severe will have been wasted.

The church shall have proved the point that she is a Key player in the politics of the nations and you ignore them at your own peril.

Will the church now have the capacity to push for a new process of the redrafting the constitution? I am sure that groups that suppressed their preferences to allow for a new constitution will find a window to reintroduce their demands. With the political will gone the assumption will be that are fine with the current arrangement, we should not rule out revenge and opposition of the whole process for the same reasons some opposed this one…not to mention those wanting to maintain the status quo.

The church will find it difficult to erase the perception of an accomplice in the No platform with suspects of historical justice and those who ruined this country during their rule. Being on the one side with the church has emboldened them forgetting their contribution to oppression and impoverishment of Kenyans. How will the church face those for whom she fought for? The rejection of the katiba will delay addressing issues of justice for the IDPs due to PEV, in fact we may be prepared to receive more IDPs since we will have no structures and means to redress causes of political conflicts.The preoccupation with the wrongs in the constitution has silenced the churches voice of affirming the positives in articulating issues of justice.

During this process of Katiba the church has made ‘enemies’ with many communities and bridges that existed in relations seems to be in disrepair. It will be hard to reach out to Muslims for the apparent hostility over the Kadhi’s court issue and political class who supported the PNC. The church will have lost an allay in the interreligious forum to press for social reforms on the ills that we all condemn in the society.

Should Yes win:

The country will be rejuvenated in hope for changes of what is past and painful. Hope will create a new sensation that should be built on to create a new country. This will give the impetus for creating and managing institutions that will implement these changes. The Separation of Powers between the Judiciary, the legislature and the executive shall ensure that rights are protected, justice delivered, opportunities and security enhanced for all Kenyans.

The expanded Bill of rights shall finally secure the principle of the Indivisibility and inalienability of rights and freedoms. Kenyans now have the basis of building a democracy where the dignity of every citizen shall be the center piece of government policy. This shall fundamentally alter the basis of state policy and budgeting in Kenya and it shall greatly deal with inequalities that exist in Kenya today.

Popular Participation shall be secured with the enhanced platforms of peoples participation in governance including stronger political parties, better representation of the people and the avenues of legislation.

The church will have Credibility crisis:

Church leaders have been the bulwark of strength against oppressive regimes over the years. They stood for equality, justice and sought to end corruption and inequalities in this country. All these were rooted in her prophetic call. The society and its leaders will have little respect for Church leaders for their opposition to the draft and this rift unless bridged at some point will render the Church voice less there for blunting her knave to be salt and light in our society.

The church will face a theological crisis:

The church has made unambiguous position on the constitutional issues of sexuality and family, Kadhi’s courts and abortion. It is a clear ideal but it is remote from the way Christians believe. Since a vast numbers of Christians will have supported the constitution with the provisions deemed against the position of the church. There will be an abyss between what the church teaches and the way many members of the church live. When it comes the constitution and aspiration for justice most Christians do not behave different from others in society. How is the church to respond to this? One approach is strongly to insist on the teaching. If we do this we are in danger of becoming increasingly out of touch with the lives of so many members of our Church. The Church might become a narrow sect whose ethics isolates it and inhibits it from sharing the gospel with others. Already many Christians cling to membership of the church by ignoring the church’s teaching on social justice and sexuality which undermines the church’s authority in other areas. If one can disregard what the church says about constitution, then why not about everything else. Others remain in the church but feel either burdened with guilt or feel second class citizens, excluded from communion because they are in “irregular situation”.

If the church simply accepts modern mores, then the dangers are just as serious. We would appear to be assimilating ourselves weakly to the modern world, lacking the guts to stand for what we believe. If the church’s teaching is true, then surely we must proclaim it. Often what happens in practice is that the official teaching is asserted perhaps “sotto voce” and subtle hints are given that everyone is really welcome. This is called the pastoral solution. Maybe it is the most humane way but it may look like dishonesty and cowardice.

The Church leaders must join their other colleagues to support the PNC before voting on the account of the gains and the promise it offers the country but set up mechanisms to address the valid moral issues it raised during and before this vote. This may be the only way to weave the differences growing out of not understanding each other and build a society where everyone has space to exist.

Rev. Canon Francis Omondi

Anglican Church of Kenya

Kadhi’s court ruling: is this our pound of flesh?

Building a case against the Kadhis courts on the recent ruling, miscellaneous civil application of 2004[the Kadhi Courts case] may be suspect. Many had quickly weighed the ruling against the impact it would have immediately on the proposed constitutional process and particularly if it would affect the referendum, and found it negative. It is obvious here that it failed to fully neither rule the courts illegal nor erase the contentions it brought. Should the proposed constitution pass, the ruling might remain a stumbling block in the administration of family law in this country not to mention inter-religious relations, unless the appeal court quashes it.

I found an analogy of this ruling in William Shakespeare’s, The Merchant of Venice. Shylock demands his pound of flesh from Antonio. "Balthazar", asks Shylock to show mercy in a famous speech (The quality of mercy is not strained—, arguing for debt relief), but Shylock refuses. Thus the court must allow Shylock to extract the pound of flesh. Shylock tells Antonio to "prepare". At that very moment, a flaw in the contract is pointed out: the bond only allows Shylock to remove the flesh, not the "blood", of Antonio. Thus, if Shylock were to shed any drop of Antonio's blood, his "lands and goods" would be forfeited under Venetian laws. Shylock, has to forfeit his property, half to the government and half to Antonio, leaving his life at the mercy of the Duke.

The court declared that the section providing that the Kadhis should not only posses the knowledge of Islamic law but also be a professing Muslim proves the exclusion of others on the basis of creed as inconsistent with Sections 65 and 82 of the Constitution. The nature of the employment of the Kadhis or the context in which they work demonstrates, that being of this particular religion or belief in Islam, is a genuine and determining occupational requirement. There are laws allowing for discrimination in employment on the basis of belief and such exemptions have been universally accepted and applied whenever an employer has an ethos based on religion or belief making regard to that ethos and belief vital for the position. It is hard to imagine a Muslim apply to serve as an army chaplain either catholic or protestant? Here is an instance where discrimination is not a vice but enables an environment where the occupation is safe guarded from conflicts of ethos. This ruling erodes the possibility to allow such discrimination not only in this case but sets precedence that will impact on all situations where employment would require such considerations.

In concluding that, the Kadhi’s courts were religious courts, the courts failed in my opinion to probe their function as abitrators. Does the fact that it deals with Muslims and administered by Muslims make it a religious court? Was there any proof that religious instructions took place here beyond arbitration of Muslim personal law? All personal laws of marriage, divorce and inheritance are derived from religious belief and it is obvious in the current and proposed constitution’s family law have had influence of Christian doctrine though we do not call them religious laws. We should see the Kadhi’s courts in the context of judicial administration of personal law marriage, divorce and inheritance of Muslim people whose culture and religion are fused and therefore very difficult to divorce. Since our courts are not competent to handle Muslim family law, it means that the Muslim people would be disenfranchised if the application of their laws would be declared unconstitutional. This position also exposes the family laws in the country to question of legitimacy on the same premise, since they derive from common law which draws in turn from Canon of the Church of England. I deem it impossible to rule the Kadhis courts religious and therefore unconstitutional without violating the rights of Muslims to their religious and personal freedoms guaranteed with this same constitution, or bringing to question the legality of family laws as are proscribed in this country on the same count.

The ruling has reinvented the ten mile strip with potential of rekindling strong sentiments of not belonging to Kenya now and not very different from the one of 1962. Then the British commission set up to look into the problems of Muslims subject in Northern frontier District [NFD] and the coastal strip in reported in December 1962 stated that religion was a factor. NFD report stated that opinions were influenced by religion , ethnic affinities and way of life… the Somalis boycotted the constitutional talks and the general elections that led to independence in 1962 agitations continued and ended up in general emergency immediately and after independent. The people on the costal strip were accommodated after a protracted negotiation after the James Roberts commissions a tripartite agreement was signed and Kenya promised to safeguard the one vital institution in the constitution. How can we have an integrated Kenya when certain freedoms are only possible in certain areas of the country? Can anyone imagine the pressure and strain for people to travel from all over the country to the coast for legal services? Are we not risking an intifada in pursuit of these rights if the ruling stands?

The court found that the financial maintenance and support of Kadhis’ courts from public coffers amounts to segregation and is discriminatory and therefore elevates and uplifts the Islamic religion over and above other religions while Kenya is a secular state. We have never in this country adhered to a secular doctrine of state, in fact, we have had a close cooperation between state and religion where both have benefited from each other. There are instances that religion has played a role in education and health services to the citizens that ought to have been state’s role. The state has also gone out of its way to facilitate the activities of religion. The church has been the greatest benefactor of corporation of religion and state in schools and hospitals Churches have been accorded state favors and we have never practiced this separation as the Judges ruled so will the church be prepared for this kind of separation. So in finding the Kadhi’s courts at discriminatory in this provision will this doom the cooperation that has existed between the state and religion? Are we prepared to go the full measure of separation which implies secular state?

This court has granted the prayer of the church leaders thus allowing them the pound of flesh but it is not without a cost!

Rev. Francis Omondi

Anglican Church of Kenya