“Always vote for principle, though you may vote alone, you may cherish the sweetest reflection that your vote is never lost.” These were the words of US second President John Quincy Adams. They resonate well with the thoughts of Alexis Comte de Tocqueville, a leading politics and history theoretician in 19th Century France. In L·ncien regime et la RÈvolution, he warned of the dictatorship of the majority.In it, he theorized the masses irrespective of class or rank are herded to reach certain end by confusion that leads to fervent and uncritical adherence.
Adolf Hitler and Benito Mussolini rode on the wings of democracy and mass populism to create dictatorships that the world still rues. I’m afraid our referendum process for a new constitution is treading on similar footsteps.A referendum like any electoral process has to meet certain basic and irreducible minimums. These include free media, freedom of speech and assembly and unhindered campaign and a transparent electoral process. Our current Constitution and electoral laws reiterate these freedoms. The Proposed Constitution is allegedly even more progressive. So, why is the ‘Yes’ group (Yessed) comprising of politicians, media and activists attempting a steamroller campaign that makes nonsense of all these principles?
Politicians led by Prime Minister Raila Odinga seem to have decided that Kenya must get a new constitution tupende tusipende. Anyone that is of contrarian view is seen as a ‘Moist’, land-grabber, retrogressive and ignorant of the Proposed Constitution. If the politicians and media have decided that the ‘Yes’ must succeed, why are we still engaging then in a charade process that will cost us Sh9 billion?Those opposed to the draft as it is have said they have issues on abortion, land, Judiciary in general and Kadhis’ courts in particular, and devolution structures. Yet, they are being dismissed as lacking in understanding and knowledge. Who decided that Yessers have more knowledge and understanding?
Article 2(6) of the draft automatically domesticates international laws and treaties that we ratify. Ordinarily, we domesticate such international laws by legislation. This innocuous clause makes such international treaties that allow such indiscretions like homosexual marriages part of our law. International treaties on marriage recognise unions of consenting adults without gender discrimination.
Article 170 of the draft makes Kadhis’ courts part and parcel of the Judiciary and thus employees of the State. In US and Europe, any group or institution that is discriminatory in its membership on sex or religion is denied federal or state funding. If the rest of the developed Western world, which we look up to, is enhancing the separation of state and religion, why are non-Muslims going to be forced by the draft to fund an Islamic judicial system? Let Kadhis’ courts be there, but don’t make them part of our judicial system nor make us finance them.
Chapter Four of the draft is the Bill of Rights and is comprehensive. It sets out all the rights we have. Legal scholars agree all human rights are reduced to three: rights to life, liberty and private property. William Blackstone in Commentaries On The Laws of England, Book The First opines these three rights are absolute and immutable and cannot in any way be waived or derogated unless by consent of the individual.
But article 25 of the Proposed Constitution clearly indicates all rights may be limited by legislation except the right to liberty. How can we then say ‘Yes’ to a constitution that will subordinate our rights to life and property to the whims of a Parliament? What if history is a guide that Parliament becomes a choir for a rogue President? Zimbabwe is a good example of a Parliament that sold its soul to the devil.
The referendum on the draft is regulated and subject to The Constitution of Kenya Review Act, 2008. Sections 37, 38 and 39 thereto unequivocally state that the Interim Independent Electoral Commission shall frame the question, set the referendum date, indicate the polling time and advice on the campaign period. Legal scholars have set minimum parameters for a referendum to be said to pass the muster: referendum question must be ‘Yes’ or ‘No’, full disclosure top the public on the issue or law being taken to vote, public must be told the truth on the consequences of either vote, and the referendum must allow a judicial process against it.
Ancient Rome through its popular assemblies called Concilium Plebis originated this process of legislation by public initiative. Since then, the public is asked to vote on an issue or new law that is divisive to give its outcome legitimacy. The process demands that there be a wide if not majority of qualified voters’ participation and in most instances an identity card is sufficient. Also, the campaign process has to be level and giving an opportunity to proponents of either divide of the vote.
Tragically, the Yessed have already begun running with the campaign even before IIEC announces the period. Kenyans cannot be blackmailed that because we have waited for 20 years, we must pass the draft. Public fatigue is never a reason to change a constitution.
The Proposed Constitution ought to be passed or rejected on merit. Let those who support it allow the Naysayers to have their time. Supporting the draft doesn’t confer one moral or intellectual superiority
By Donald B Kipkorir
—The writer is an advocate of the High Court email@example.com
PS when Donald Kipkorir gets published on Muigwithania mambo yamechacha