The fetishisation of the Constitution

We are Americanising at an astonishing rate. It used to be that cultural exports from the Land of the Free and Home of the Brave captured the popular imagination, from MTV to Hip Hop and Gangster Rap, from Hollywood fare to pulp fiction. We now seem to have imported American political pillars into the Kenyan political arena such as the fetishisation of the Constitution and the obsession with "strategic coalitions and alliances". The so-called culture wars, the perennial battle between conservatives and liberals over abortion and family values, seem to have crossed the Atlantic and landed on our shores with a bang. The days when parents would decry the influence of 2Pac or the Notorious B.I.G. are well and truly gone; we should be more concerned that it is specific chapters of the Constitution that receive prominence while incidents, such as the deaths of dozens of police, receive little. Even as many call for investigations into the Suguta Valley Massacre and Matthew Iteere's head on a platter, our obsession is with the general election and the place of Chapter 6 on the presidential ambitions of Messrs William Ruto and Uhuru Kenyatta.

The Committee of Experts did an excellent job of harmonising the various drafts into one Proposed Constitution in time for the 2010 referendum. They did a piss-poor job of weeding out irrelevant provisions. Take a look at Chapter 6, for example. The sentiment behind the Chapter on Integrity and Leadership is laudable but it flies in the face of reality. There isn't a voter alive in Kenya who lives by the rules or accepts that the rule of law covers them. Impunity is not to be found only in the wretched political class; we are all guilty of impunity. So too with the Two-thirds Gender Rule. No one will argue against ensuring that representation in Parliament and the county assemblies should reflect the facts on the ground; that the genders are more or less the same in terms of numbers and expertise. But the rule flies in the face of reality too. We have done precious little to re-write the culture that makes, especially women, second-class citizens in Kenya. Even the church has done little to reverse this view. The Roman Catholic Church and certain branches of the Anglican Communion still refuse to ordain women priests. We have not set the ground to elevate women to positions of responsibility or leadership. How are we to achieve equitable political representation when we aren't even brave enough to state that representation in Parliament or the county assemblies should be on a fifty-fifty basis?

We have fetishised the law to an extreme end without addressing the foundations for the proper appreciation of the rule of law. The rule of law will not apply in an environment of general contempt for rules and regulations. Even social mores and norms contribute to a healthy respect for the rule of law. The general rules of the game, such as they are, ensure that our socio-cultural regulations are executed within certain accepted parameters. In family, one cannot marry a person in a prohibited relationship such as a first-cousin, sibling, parent, step-parent, half-sibling, adopted sibling, etc. This has been codified in law. But it was a social prohibition first before it became a legal prohibition. First the society decides then it legislates. We seem to have come to accept that it is acceptable to show contempt for rules. Even if it was not for the sensationalisation of child-defilement cases, it is almost certain that incidences of incest among siblings or between parents and their children are o doubt on the rise with the accompanying social sanctions. When officers of the law such as police and the courts engage in "negotiations" in order to resolve these anti-social actions, contempt for the law (impunity) is reinforced and every one knows that they too do not have to obey the general rules of the game. So while the elite of the elite in Nairobi obsess endlessly over the "implementation of the Constitution", millions of Kenyans continue to witness the ceaseless chipping away at the foundation of the rule of law, participate in it, and contribute to the impunity all hypocritically pretend to condemn.

Very soon it will be what is written on paper that matters rather than what is just or unjust. The Constitution will become our new idol. It will not be the only one. SMS lotteries provide a very good example of the changing moral fabric of the nation. It was expected of everyone that the path to success and wealth was hard work and dedication to a craft. One studied hard, worked hard and one was rewarded by material wealth and success. SMS lotteries and other forms of gambling have whittled away at this ethos. But this erosion of a core national value was also accompanied by the perfidy that leaders engaged in with wild abandon. The national narrative now is that one need not world hard to succeed; one need only be lucky or be in the right place at the right time. Children now learn that material wealth is the be all and end all and that it can be obtained simply by spending other people's money or by engaging in corrupt and immoral acts. The law is only loved by those who make it or enforce it; the people have since given up on it.