Mombassa, Kenya, Jan 18th. - One of the saddest aspects of the post election nightmare is that every utterance or statement is scrutinized with suspicion by just about everyone in What we witnessed on our TV screens on December 29th and 30th are events that we will recall for decades with outrage, horror and disgust. Our dignity and our innocence were violated before our eyes by an inept, incompetent and disgraced electoral commission. The angry rebellion all over the country was a spontaneous reaction to a vicious assault on the voter's choice and voice.
While the ECK Chairman claims he does not know if Mwai Kibaki won the election, no one knows for sure whether Raila Odinga won either. All we can say with certainty is that Kalonzo Musyoka lost miserably but recovered quickly to pick up the scraps. He now serves in a government that may be legally in place but lacks legitimacy. So we face the prospect of being ruled by a government that is deemed illegitimate at home and lacks credibility abroad.
What ever happened to our nascent democracy? Were we naïve to imagine that our votes were important, or that ultimate power rested with the people? What the December 27th election proved beyond doubt is that democracy without constitutionalism is simply ethnic majority tyranny. We may
possess an energetic civil society, a courageous media, a host of freedoms and a growing economy but we are still governed by a constitution designed to facilitate a one-party or single-ethnic community dictatorship. For two decades we have laboured to create a Constitution that protected and promoted human rights; that freed the Judiciary and Legislature from the excesses and whims of the Executive; and that produced legislation that would dismantle the colonial authoritarian structures and replace them with institutions that were accountable and effective. But our efforts have not borne fruit.
There was a "Constitutional Moment" in 1997 that was snatched from wananchi by the political class under the guise of the IPPG. They have not returned it to its rightful owner since. The Bomas farce and the Referendum fiasco were just opening rounds in a battle for power that reached its climax on December 29th. The events of the past two weeks confirm that without constitutionalism our politicians can reduce the country to ruins and deny us even the few freedoms that we thought were inherent and guaranteed rights. We are in a crisis that is recognised by everyone except a small powerful clique who are currently in denial. We have frequently heard that the best constitutions are made in times of crises. How much deeper must we sink before the protagonists acknowledge that our biggest crisis is constitutional and not merely political or ethnic?
Our religious and civil leaders keep addressing the symptoms of the crisis as they try to bring relief from the suffering. Regretfully, such platitudes and admonitions are inadequate as any resolution must begin by acknowledging the root causes of the present chaos. Any analysis that lacks substance will in any case be considered by the public as support for one side or another. Let us first admit that it is a futile exercise to attempt to revisit the tallying as the ECK has had over three weeks to complete their dirty work. There are genuine demands for a repeat presidential vote, but how satisfactory would that exercise be as the ethnic arithmetic and voting patterns have changed dramatically with the capitulation of ODM-K and the disenfranchisement of 300,000 IDPs? An early repeat election would satisfy no-one and leave us just as divided, regardless of the outcome.
Many have called for the immediate establishment of a Truth, Justice and Reconciliation Commission as recommended by the Prof Makau Mutua task force in 2004. Commissions of this nature, however, should follow constitutional settlements rather than precede them. When institutions are established and stability restored, we possess the capacity and confidence to face the dark side of our nation's past. But to present truth commissions as the panacea for all our ills especially when we are hurting and vulnerable is simplistic and imprudent.
It would appear then that the only viable and realistic option is for the country to endorse a power-sharing transitional government whose chief mandate would be to complete the constitutional review process within a period of 18 months and pave the way for elections in 2 years time. This proposal will not be welcomed by the conflicting parties. It will not appeal to their die-hard supporters either who are convinced that 'their man' won. Yet it has the capacity to garner the support of most Kenyans as a win-win solution that can move us slowly forward as a nation out of this dreadful mess. Such a solution demands humility, self-sacrifice and generosity, qualities which appear to be in short supply at the moment. However, I contend that any other proposal will give us just temporary relief from our misery and not heal the deep divisions that are so apparent at the moment. What is required is a solution that requires an institutional setting in which the state is no longer communalised and no longer the monopoly of a particular ethnic group, but in which the state is reinvented as the arbiter of a civic pact between all the ethnic communities. That can only occur when we acknowledge that the current crisis is about constitutionalism and not about politics.
However, I would hasten to add that a transitional government would fail once more in this task if it were not bolstered and monitored by a vigorous civil society and a panel of experts who would guide the process and prevent the political hegemonies from hijacking and politicising the process for the umpteenth time, We know the darkest hour is just before the dawn. We are surely at the darkest hour in
they can take it.
by Fr Gabriel Dolan SPS
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