By George Nyongesa

In an open society, the constitution-making process is normally characterised by active participation of all and sundry sections of the society. Understood against this background, conflicting views on a draft constitution can be deemed healthy and tolerable. However, the ongoing conflict on draft constitution is anything but a healthy debate, and I being almost as old as the struggle for change in this country, I am persuaded that we need to get done with matters constitution so as to shift national building energies to other agendas.

The antagonism that the draft constitution is receiving from the circles of the likes of former President Daniel Moi, his political offspring as well as a section of church leaders is an incoherent, ill-informed and out-of-tune soliloquy of misguided passions. Interestingly, this antipathetic camp constitutes factions that have separate interests but a common enemy – the impending liberation of the people of Kenya whom they would prefer be detained in the old order.

Moi a leading luminary of status quo

My assertion is, among others, guided by the fact that the luminaries of the No camp were benefactors of the past regimes’ evils and in the two-decade-old push for a new constitution they were never a party to the struggle for new order. Secondly, on a proper analysis in the context of Kenyan politics one would easily conclude that as in the past, this clique offers no constructive solution for change but only destructive confusion characteristic with status quo. Thirdly, I am persuaded, as are many others, that former President Moi stance is just but the ears of a hippopotamus of the status quo beneficiaries and the stubborn position of this strange union has but one goal – to bog down the forward match to a new constitutional order by playing on the emotive issues of Kadhis courts and abortion. I find the no camp insincere in so far as they are aware of the constitutional dilemma we are in, even as they demand renegotiation on some clauses of the draft constitution yet by law there is almost zero option to amend the draft constitution. I am also cynical about these naysayers because they speak in broken text of what makes a good constitution but have perfected with poetic eloquence propaganda and scare tactics against the draft constitution, all in an effort to win followership. I am also persuaded against the no crusaders by the fact that senior celebrities in that camp, such as former President Moi, had all of a 24 year chance to guide Kenyans towards a new constitutional dispensation but chose to preside over his predecessor President Jomo Kenyatta’s initiated retrogressive amendments to the constitution that spiralled our country into the authoritarian state that has had its dark climax characterized by politically instigated political assassinations, corruption, massive land grabbing, gross human rights abuse and utter poverty.

Why I am voting yes to the draft constitution

A distinct mark of a great constitution is one that gives power to the people, protects its citizens’ rights and most importantly, contains an amendment clause to deal with socio-political dynamics and with matters that may have been missed out. The current draft constitution, like other constitutions that have ever existed all over the world is not the best. However, judged against the obtaining constitution and the abovementioned standards it is a better constitution in so far as it has brought us so much closer to a semblance of power to the people, equitable resource distribution, the principle of separation of power and the protection of citizens’ rights. Considering the difficult 20 year journey, I find this draft constitution a welcome rest break but not the ultimate destination. This is rightly so because a constitution is never meant to be static but a living document that grows with the needs and demands of the society it serves.

In my perspective, this draft constitution once legitimized through the referendum process, shall afford Kenyans the opportunity for the first, second, third and so forth amendments in so far as majority are persuaded. This is my firm foundation for yes vote to the draft constitution and my progressive prejudice against any no vote on the draft constitution. It is my persuasion that those drumming up support for a no vote are not doing it for the common good but are just the lords and beneficiaries of a dying order whose reflexive moves are based on a fear of unknown likely to result from the evolutionary changes that are taking place.

In my reading of the text of draft constitution, one of the near radical departures from the current constitution that it makes is that it begins to address the question of land acquisition, distribution, allocation and ownership. What we must never hide from is that the land question is the bedrock and cauldron of most of the social crises this country has faced and continues to face, including post election violence and its aftermath. Land was the petrol that fuelled simmering passions and set this country ablaze following the debacle of the last general election. Land remains the biggest social problem that has claimed the most lives, dating from colonial times through Kenyatta and Moi rulership and now in Kibaki’s hegemony.  A close observation of the new constitution’s detractors would expose that that faction is largely made up of large land owners who would not want to be held accountable on how much land do they own, how they got it and what they are doing with it. Those are the elements that have been protesting that the draft constitution will make land ownership regimes socialist as opposed to capitalist. This is simply because the draft constitution proposes a land commission and also has dealt away with 999 year land lease.

Is nationalization of land a panacea?

These elements that are scared of land reforms must wake up to the reality that land is a natural resource and that makes it an inheritance for all Kenyans as long as there is still some land to go round. It is self-evident truth that it is immoral and unjust for any one person or family to own thousands of hectares of land and yet a majority of Kenyans do not have even a six by six space for their burial rites. Therefore, owners of large tracts of land are under notice that the problem of land in this country is no longer a rhetorical issue and while it seems you are scared of this piece-meal land reforms I am of the opinion that we should explore nationalisation of land.

I am persuaded towards nationalization of land, first as redistributive approach on land injustice and more so to secure socio-economic rights such as right to food, right to shelter and right to income for all Kenyans. In this regard, I find it important that the State possess adequate land to develop programmes and projects to ensure that its citizens are not food and shelter insecure. To solve the perennial food insecurity Kenyans face year in year out the State should own farms where it grows food for the commonwealth. Similarly, the housing problem can be solved by the State having land where it puts up houses and sells or lets these to the citizens at subsidized rates.

In matters of real politik I find no justification why any Kenyan who wants to own a piece on which to erect a structure for their shelter or grow some millet for his family should be denied that right to satisfy someone’s greed of owning large tracts of land. I do not buy into the elites’ dictates that ordinary Kenyans should shift their income generation activities from land reliance because Kenya is a land-based economy and it is no secret that those who are rich are as a result of the loans they access on the title deeds.

Message to the grassroots

Therefore, Kenyans must be distrustful of the self-serving anti-draft constitution camp and especially since the issues that they seem to be shouting really loud about are only being used for expedience because of their emotive effect. The naysayers’ real problem is that the status quo is being shaken and they are fear struck over what will happen to the house that they built on quicksand. We should not allow these elements to break our forward march to the dawn of a new constitution. The options they are giving us for voting no leaves us with the current constitution which continues to serve this selfish cartel very well. If there is any chance that the incumbent constitution can be amended as it has been done before, let us not forget that even the new constitution has an amendment clause. So the outstanding issues should not be made out to look as though they are irreconcilable but be seen as issues that we as a nation can address after we have given ourselves the new constitution. You must participate in the referendum and vote wisely!

End

Kaunya leaves for Germany

Nyanza Central deputy Provincial Commissioner Oku Kaunya has left for Germany after receiving death threats in March. Photo/FILE