FUATA NYAYO

By MUTAHI NGUNYI

Our constitutional moment is now. And, if this is true, we must make it a negotiated moment. Instead of a ‘‘win-lose’’, we can make it a ‘‘win-win’’ situation. A negotiated referendum; not a zero-sum referendum. But there is a problem. The moment is ripe for change, but there is no midwife.

The fault lines are drawn; the intolerance is rising. We are back to 2005. Instead of negotiating, we went for a zero-sum referendum. In place of dialogue, we chose the ‘‘bow and arrow’’ approach. The referendum intolerance led to civil war in 2008. The question is this: Are we repeating the same mistake? I have a hypothesis.

In 2008, we went to war. And, overtly or covertly, there were two ‘‘war lords’’. Between them, we have no idea who won. Then they divided the country. No! They perverted the spirit of the nation. Because of their actions, we killed each other. To date, the wounds run deep, the pain is raw.

What is worse: widows of victims and their children are still in camps. But that is not important; at least not to the two ‘‘lords’’. They got what they wanted. And, either way, they got it by force. Now they have come together. And they want something else. Like it or not, they will get it. Nothing demonstrates this better than the Ruto ‘‘demotion’’. The man disagreed.

Then President Kibaki gave him the ‘‘chapa fimbo!’’ treatment. All this happened after the President and Mr Ruto rode on the Commander-in-Chief’s Land-Rover in Eldoret. One moment the President was ‘‘romancing’’ Mr Ruto, now he is in ‘‘bed’’ with Mr Odinga. Not sincere, in my view! But to be fair to the President, he was only instructed to demote Ruto.

Constitutionally, Mr Ruto was demoted by the prime minister. In my view, Mr Odinga’s philosophy is simple: “fuata nyayo!” And this is why politicians from the Luo Nation walk with their tails between the legs. Oppressed, molested and bullied. Even clever ones like Mr Orengo have to ‘‘fuata nyayo’’. The apparent Odinga game plan is to export ‘‘neo-nyayoism’’ beyond the Luo Nation. And this is what Mr Ruto has resisted.

But there is something I did not understand about this reshuffle. It came across as a form of displaced aggression. In fact, it resembles the actions of agitated ‘‘war lords’’ blasting through an obstacle. It was about ‘‘might being right’’: vindictive and intolerant. And the question is this: If these two ‘‘lords’’ took us to war, can we trust them to take us through a constitutional settlement? Will they negotiate the settlement or will they bully their way through it? Similarly, in the process of giving us a new constitution, will they unite us or will they divide us?

In the last election, one of them was incompetent, the other was reckless. What happens if you combine the two? If the President could not handle his re-election competently, how will he handle his succession after a divided referendum? I am afraid; very afraid. My ‘‘No’’ vote is therefore a vote against the two. It is a protest vote against their vindictive and bullish ways. But it is also a vote against ‘‘zero-leadership’’.

They failed to lead Parliament into a consensus. In fact, they simply bullied them into voting the draft by acclamation. And I am not voting ‘‘No’’ simply for protest. I am violently opposed to two things in this draft. Forget abortion; forget kadhi’s courts. In fact I think the land chapter is particularly progressive. My beef in the draft is about two things: the presidency and majimbo. For some unexplained reasons, the two issues have disappeared from debate.

In my view, our 20-year clamour for a new constitution was about downsizing the presidency and enhancing the nation-state project. Instead, we have created a monster for president and balkanised an already divided country. If indeed Mr Odinga is intolerant of dissent, what will he become if he assumes a powerful presidency? On the executive, I submit that this draft is inferior to the Kofi Annan hybrid in the current constitution.

The idea of a non-executive prime minister has two advantages. One, it creates two centres of executive power; one strategic, the other operational. The new draft gives executive power to only one man. Then it empowers him to form a cabinet from amongst his non-elected friends. Two, the idea of a president, vice-president and a prime minister is good for ethnic coalitions. In fact, it provides the best balance for our ethnic politics. The new draft pretends that we are not ethnic. In fact, it borrows the American presidential system unapologetically.

But what is more: in all the consultations done by Bomas and the CoE, no one mentioned this kind of presidency. Our choices were always two: the current presidency or a parliamentary system. The new presidency was created by PSC in Naivasha. By extension, therefore, it is an elite project, for the elite and of the elite. But if this is our constitutional moment, where does a hard-line position like mine take us?

In my view, positions are currently hardening. This is because we missed an important step in constitution-making -- negotiation. Failure to negotiate can only result in intolerance, ethnic bigotry and violent contest. And this is why we must listen to Mr Kalonzo Musyoka and Mr Uhuru Kenyatta. The two are looking for a negotiated referendum. Instead of a zero-sum referendum, they are asking for a multi-choice referendum.

This, in my view, is the difference between our ‘‘war lords’’ and the emerging ‘‘statesmen’’. A war lord uses bravado and sheer force; a statesman uses persuasion and tact. The war lord will look for an obstacle to blast; a statesman will look for a loophole to negotiate. And this is the direction the two are offering the nation. If it means changing the law to allow negotiations, then we must change it. Besides, the law is not bigger than Kenya!

mutahi@myself.com