kenya's draft constitution under fire

October 30, 2002: Mr Covington is a tourism executive working in Nairobi. The Nation in Nairobi recently published his opinion on the draft Constitution:

The reactions to the 2002 draft constitution reminds one of meeting a very plain person at a cocktail party. Drink in hand, he or she looks wonderful at first. Yet the later it gets, the worse your companion appears. By the time one is sober, one wonders just what the attraction was to begin with.

So many of us, happily drunk with the idea of change, have rushed to pour accolades on Prof Yash Pal Ghai's constitutional offspring. The problem is that when sober, Kenyans may see the warts, flaws, ugly bits and unsuitability of much of this prospective constitutional partner.

The draft, at double the size and quadruple the complexity of Kenya's current one, would be expensive, cumbersome, eternally litigious, impractical, contrary to African morals and oppressive to personal freedom. Already, many suitors are backing away, As well they might.

The world population generally divides into two political groups. There is a group on the Left. They think government should get bigger, as it can do wonderful things for everyone. Then there is a bunch on the Right. This lot swears government should be kept small, as it can do very little for anyone. Ironically the Right often gets elected - and by its performance, always proves its premise is correct.

The National Constitutional Conference (NCC) seems to emanate from the Left. They want increased government so it can do more - especially the things it dismally failed to do from 1962. African socialism of the 1960s could not produce the Uhuru promises: water for all, food security, schooling, health-care and the rest.

Disregarding failure, the conference's "2002 Constitutional socialism" now throws in arguable extra "rights" to homosexual marriage (Clauses 34, 38.3) and abortions (Clause 57.1). Then there is sanitation, shelter, a nice environment, food, free education, drinking water, pensions, care of the elderly (Clauses 36, 39, 56, 60, 61, 62) and more. We even have consumer (Clause 61.4) and producer rights, guaranteeing endless squabbles between Mama Mboga and Mama Mpishi.
Missing from the rights list is a new kitchen sink - an oversight the NCC might have corrected were it still functioning.

All religions in it are equal, but Islam is more equal than others (Clause 5.d). Everyone is grouped for "affirmation" via Parliament - children, elderly, women, Muslims and so on (Clause 77), except mature Christian males. They only have to pay for everyone else's affirmation. At least "Draft 2002" cannot be accused of being original - the worldwide left-wing mantra is that Christian males are to blame for everything wrong in the world. Why not Kenya as well?

Draft 2002, seemingly, was drafted by an elitist combination of lawyers, NGOs, activist feminists and various priests. These are precisely the sort of people who are insulated from the real world. Certainly, no ordinary people could be so unwise as to encumber the population with complex utopian government. Could Wanjiku understand it?

Implementing the 2002 draft would bankrupt a Western social democracy. Some with similar constitutions are abandoning such costs. Kenya is broke but was about to assume them.

Others, like South Africa, can float their alien bourgeois socialism on a bed of inexhaustible real wealth in gold and diamonds. Kenya has none of this - we simply need honest freedom to conduct true enterprise. Draft 2002 offers instead the deadly non-productive hand of more government, more taxes, "activism", affirmative discrimination, "rights" and "victimology".

In fairness, some classes of Kenyans would have benefited hugely from the 2002 draft - Tax-collectors, social busybodies, and wealthy elitist women. Best off would be lawyers and donor-assisted NGOs. These could quadruple their numbers to accommodate the endless litigation and victim-seeking the Draft seeks to entrench in Kenyan daily life.

Affirmative action, that producer of sloth, elitism and corruption - would be everywhere, with its bosom companion in social parasitism, the "human rights activist". None of this would be so bad if the drafters of the 2002 constitution had a specific clause limiting the proportion of busybodies, lawyers and activists to the plain citizens of Kenya. Alas, who can trust goats to look after one's vegetables?

One understands that the NCC were aware of the failure of government towards Kenyans, in truly appalling ways, post-1962. One feels their genuine desire to prevent that in future. It's a pity their social activist instincts could not persuade them that more freedom and protection from government, not more bogus state-led "social justice", might have benefited Kenyans more.