By MIGUNA MIGUNA*
Dear Mr. President:
I am writing to you at this momentous time when our beautiful country is at the centre of a political storm. The storm has been gathering force and momentum each passing day. The political waves that have been lapping at the banks of our country’s landscape have pushed the people to the edge of a historical cliff where they can either fall over into a precipice or back into the eye of the storm. Should either of these occur, Mr. President, we would face a catastrophe whose effect may last for generations. Kenya may not fully recover from such inevitable calamity, unless we address the root causes of the problem and either divert the approaching political typhoon or seek safety elsewhere. If the storm facing us ends up tearing, uprooting and destroying our country, you will, Mr. President, bear a lot of responsibility, and would be required to answer questions, as to why you failed to protect the people of Kenya from the howling winds or what, if anything, you did to prevent the havoc from engulfing us Let me try to explain.
As the president of the Republic of Kenya, history has bestowed upon you a unique responsibility of ensuring that you truly, honestly and fully uphold the constitution of the Republic of Kenya. When you were sworn into office in December 2002, you took an oath to protect and uphold the current constitution, to conduct yourself strictly within the constitution and to govern (not rule) Kenya in accordance with the Rule of Law.
One of the central requirements of any constitution is for the chief executive, however defined, to protect all citizens from harm, oppression and injustice. You are constitutionally required to treat all citizens equally regardless of religion, colour, creed, ethnicity or political opinion or affiliation. To be faithful to the current constitution, you must not take sides between or amongst Kenyans, unless it is for the general public good. In all your executive choices Mr. President, the constitution requires you to always act within the law and parameters set by the constitution itself. You cannot and must not permit your choices to be dictated by parochial selfish interests, ethnic considerations or political survival.
Section 1A of the current constitution states that Kenya shall be a multi party democratic state. The cardinal words here are “shall”, “multi party” and “democratic state.” The use of the word shall in describing the type of country Kenyans should live in was deliberately designed by the drafters of the current constitution to direct everyone, including you, on what our country must be. Constitutionally, you have a positive duty to make sure that for the entire period of your tenure, this section is upheld without equivocation, qualification, abrogation or mischief by anyone, including yourself. It means that anyone who undermines, directly or indirectly, the multi-party and democratic aspirations or components of this country, would be acting in violation of the current constitution. Any such violators, Mr. President, are subject to the imposition of penalties as prescribed by law. Again, there are no equivocations, exceptions or qualifications. The constitution remains the supreme law of the land.
Section 47 (1) of the current constitution states that “[S]ubject to this section, Parliament may alter this Constitution.” According to all reputable English language and law dictionaries I have consulted over the definition of the word “alter”, Mr. President, I have inevitably found that it means: modify, adjust , amend or to make different. There is no dictionary published in English that would ascribe to the word “alter” any other additional meaning, especially one that would legitimize a complete “overhaul,” “replacement” or “repeal” of the entire current constitution. To do that one needs to amend this section to include “repeal”, “overhaul”, or “replacement” as one of those things that Parliament, or any other mechanism required for such to occur.
When the constitutional change process first started in early 1980s, Kenyans rightly demanded the complete overhaul of the entire current constitution. At that time, section 2A that made Kenya a de jure one party state was still in place. Even following the repeal of section 2A and the enactment of section 1A that made Kenya a multi party democracy, the overwhelming majority of Kenyans still demanded, and continue to demand, the complete replacement of the current constitution with one in which the powers of the presidency would be dramatically and significantly reduced, dispersed, devolved, counter-checked and counter-balanced. The central argument by Kenyans have consistently been that the imperial presidential powers that you currently enjoy have been the root cause of the grand corruption in the country, the misallocation and pillage of public resources, particularly land, and the repression that we have lived with since 1963. With the enactment of a new constitution, Kenyans wanted to say “never again” with respect to the kind of repressive rule they endured under Kenyatta and Moi. Similarly, Kenyans have consistently asked for a devolved and accountable government; not the retention of a monolithic all powerful central government. These two have been the pillars driving the constitutional change and reform movements.
At the end of the Bomas process, Kenyans felt that they had at long last produced a constitution for themselves. At the Bomas of Kenya, the people of Kenya debated, reasoned and argued amongst themselves, in their collective brilliance and ignorance and produced what they felt would protect them and their resources from the ravages of future despots and rapacious thieves. Notwithstanding the incoherent grumblings from a section of your Cabinet and political supporters, the Bomas Constitutional Draft is the only document that was produced through a popular democratic process. Judging by the Orange euphoria and popular uprising by most Kenyans in recent weeks, the Bomas Draft has the support of the majority of our people. No matter how right you and your advisors believe that you have been and the rest of us are misguided, the fact of the matter is that as the majority, democracy demands that you listen to us and subject your idiosyncratic feelings to democratic norms. We, the majority, have spoken and there is no going back.
Mr. President, it was a betrayal of the wishes, aspirations and feelings of Kenyans when your government orchestrated a coup de tat against the Bomas Draft at a posh Kilifi Tourist Resort and has now forced them into voting over a document that they had absolutely no input in preparing. Not only was the process fundamentally flawed and undemocratic, the product of that illegitimate process also resulted into a monster that is dramatically different from what the people had produced or wanted. Your monster has now generated all kinds of forces that threaten to engulf us in unprecedented storm. The hand-picked elites that prepared your illegitimate draft will either be hiding in their mansions or feeing abroad when the storm strikes. But what will happen to the rest of us Mr. President? Will you leave us for the forces of nature and man to ravage us until we are no more or will you stand up and lead?
Mr. President, the way out of this storm is not to ride it to the ocean like your advisors have said. If you do this, you will drown, like others before you have. Neither is the choice to sit it out and see as you are wont to do. If you continue doing this, it is likely that you will howl with the wind to the four corners of the earth. It is also not to introduce diversionary tactics like my friend Ralph, that loving son of yours, has tried to do. Diversionary tactics do not work at this late hour; the storm will scatter those trying this strategy to the deep sea. The only way out is to go to higher ground. In our case, this requires that you swallow your pride Mr. President, apologize to Kenyans for your stubbornness, ask for their forgiveness and allow them to say “yes” or “no” to the Bomas Draft. You would have retreated with us to a higher moral ground. We would live to tell the tale another day. That is our only salvation. And it is your only reprieve.
Mr. President, this is my only unsolicited advice. However, should you continue to ignore the approaching typhoon, we would call upon all Kenyans, those whose survival instincts are still agile, to abandon the cliff and join the howling wind, saying NOOOOOOOOOOOO to your government’s suicidal madness. Mr. President, we shall not fall over the cliff into the canyon.
20 September 2005, Toronto, Ontario
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*The writer is a Kenyan practicing law in Toronto, Canada
