Constitutions Are Written to End Wars Not to Start Them

Okiya Omtata
13 August 2010

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Nairobi — The referendum has come and gone and, to the shame of all the prophets of doom, Kenyans have emerged triumphant. We have all but redeemed our image, which was soiled in the reckless, self-serving pursuit of power by our politicians in 2007/2008.

The fierce campaigns were as important as the peaceful voting and acceptance of results, and they made even sweeter the peaceful resounding endorsement of the new Constitution.

Without the robust opposition that was mounted, we would have missed the all important opportunity to prove to the world that in our own way, we have come of age as a fragile democracy, able to entertain divergent views and make a sober choice to arrive at a conclusive and binding decision.

Without the strong opposition to the new Constitution in the form it was, the referendum would otherwise have been a simple rubberstamping event and not the all-important exercise of the people's sovereign power.

And we would have lost the opportunity to rebirth our confidence in democratic elections.

We must also appreciate the fact that the Committee of Experts abused their mandate to introduce radical controversial changes in their final draft, causing the alarm that required a strong "No" tide to force out the political clarifications and concessions from the government that happened on the campaign trail.

It was important to point these out before the resounding ratification at the referendum. Thanks to the "No" team, Kenyans clawed a lot back with the campaign floor declarations and clarifications from none other than President Kibaki and Premier Odinga.

It would have been dangerous to pass the document in its current form, the way we did, without those public clarifications on issues such as land, abortion on demand, ratification of international law, homosexuality, state security, public morality and order, representation and devolution.

The import of the political declarations is going to be felt shortly when Parliament debates Bills to operationalise the new Constitution.

Given the fact that many MPs were forced into the "Yes" camp by forces beyond their control, they will soon bloom in their true colours on the floor of Parliament where their convictions will deliver their conservative votes.

The implementation phase needs the express support of every MP, not just to pass the Bills but, equally important, as a buy-in for their constituents who opposed the draft constitution.

Hence, it is foolhardy and catastrophically flawed to try and victimise those who sought strategic amendments before the draft was ratified.

Being a plebiscite about our constitutive power as a sovereign people, and not a vote in Parliament on a given government policy position, for which party whips would punish MPs for going against a party position, MPs who campaigned for amending the document before it was ratified cannot be taken to task in a true democracy.

Understanding that distinction will help us place the doctrine of collective responsibility where it belongs, outside the constitution-making process.

Kenyans decided with clarity on August 4, 2010, and now it is implementation time. Let's not waste valuable time advancing sectarian positions that show we do not fully appreciate the two things at stake in the constitution-making process: nation building and the making of a modern State.

Let's respect diversity of opinion and not criminalise democratic dissent. Let's tolerate alternative views. Let's enhance, not erase, the democratic space we have all fought for so hard.

The supreme law is ultimately about the common good. Constitutions are written to end wars not to start them. Hence, the referendum victory is a birthday for all and not a burial for anybody.