Matiang'i: Uhuru's Middle Finger To The Constitution

President Uhuru Kenyatta’s recent elevation of Fred Matiang’i to “chief” of the Cabinet Secretaries has been widely interpreted as a swipe against his deputy, William Ruto. While there may be some truth in that, it feels like once again the country is missing the wood for the trees. The appointment is also a swipe against the constitution itself, part an unrelenting assault that the President and his party have mounted on the document since their campaign for office in 2013.

To understand why this is the case, one needs to think back to the illegal deportation of Miguna Miguna, the self- declared “General” of the National Resistance Movement. Many will recall that this action, which came in the aftermath of Raila Odinga’s mock swearing in at the end of January, precipitated standoffs between the Executive and the Judiciary, with the former disobeying multiple court orders to produce him in court and return his Kenyan passport.

In December, the High Court ruled on Miguna’s constitutional challenge to the government’s action and agreed in toto with him. In fact, Justice Chacha Mwita found that Matiang’i, as well as the Inspector General of Police, Joseph Boinnet and Immigration Permanent Secretary, Gordon Kihalangwa, had violated the rule of law, the constitution and that their conduct amounted to abuse of their office. The constitution prescribes that such conduct is grounds for removal from office, not promotion.

This is the context in which we should understand President Kenyatta’s actions. He has basically flashed the constitution his middle finger and, by so rewarding, rather than firing, one who has so callously violated it, demonstrated his own contempt for the document and the institutions and standards it establishes.

This contempt has been on display even before he became President. It was his and Ruto’s candidacy for the highest office while indicted for crimes against humanity at the International Criminal Court that made a nonsense of the constitution’s prescriptions on leadership and integrity. Today, he appears completely oblivious of the irony when he says that no person charged or implicated in corruption will get a State appointment until they are cleared, as a measure of dealing with graft.

But it is not only the President who is at fault. The constitution give Parliament the duty of oversight over Cabinet Secretaries and MPs can initiate a process for removing those that are guilty of gross misconduct. Yet to date, there has been no attempt to probe Matiangi’s conduct or even calls for his resignation or removal. Neither has any of the MPs raised their voice in protest at his elevation except in as much as it concerns the fortunes of Ruto.

The media, too, has not shown any particularly interest in rocking the political boat, instead preferring to let the politicians take the rudder. As always, the press has been entrance by the drama of of our personalized political contests (and especially the fate of Ruto’s ambitions to succeed Kenyatta) and are blind to the substance of the issues such contests skirt around. Quite the contrary, the media has been only too keen to lionize Matiangi’ and to present him as the savior of the wananchi, rather than the dangerous lawbreaker he is.

And we have been here before. In 2004, it was the late John “The Crusher” Michuki who was all the rage, the media again doing little to question his methods and motivations. They would pay dearly for that when he would authorize the 2006 raid on the Standard premises and order a news black out in the wake of the violence that followed the 2007 election.

Finally, failed by their representatives and kept singularly uninformed by the press, Kenyans have also been unable, even unwilling, to recognize the threat that allowing the several arms of government to subvert the constitution poses. After more than a century of governmental repression both before and after independence, the arrangements and duties in the 2010 constitution were primarily aimed at achieving one thing that its predecessor had failed to do: to bring the Leviathan to heel. That failure inaugurated half a century of brutal, murderous and kleptocratic regimes.

Yet nearly a decade after Kenyans voted overwhelmingly to adopt it, the constitution faces a similar fate: amended or simply ignored into irrelevance. And with no one to stand for it, this is a fight the constitution cannot win.

Throwing The Book At Terrorists

No. Nudity Is Not Your Choice. And Here’s Why It Shouldn't Be

Why are gangs of men allowed to roam our city streets, attacking women with impunity and stripping them of their clothes and dignity? Why is another gang of men roaming the internet and seeking to put women in their place? Why do any of them feel they can arrogate to themselves the authority to dictate to our women how they should dress?

I find it hard to believe that the #NudityIsNotMyChoice crowd are too dim to see the link between the idea that they should have a choice over what women wear and actually doing something to enforce that. They are thus being disingenuous when the claim that they are against the assaults on women. In fact, their leader and spokesman, Robert Alai, has flip-flopped on the issue, first advocating for the stripping of supposedly indecently dressed women and later suggesting that those who do so should be jailed.

His moral acrobatics are illustrative of the intellectual confusion of those who on the one hand protest their belief that women should not be subjected to such indignities while on the other hand insisting that women conform to their ideas of propriety. It is inconceivable that they do not realize that these are two sides of the same coin. That it is the threat of violence that is used to keep women in line, to control them and keep them subservient to the desires and wishes of men.

It is obvious that dress is only the tip of the iceberg. It is also not just about control of women’s sexuality (though that is, a big part of it - more on this below). In the end the furore over hemlines is really about the power of one group of Kenyans to exercise power over another. It is about the power of one group to impose its preferences on another, to value its comfort over the rights of the other.

Viewed in the context of other retrogressive measures introduced in the recent past, such as the attack on civil society and the collective punishment of communities, it is hard not to recognize a wider pattern of rolling back the rights and freedoms articulated in the constitution by groups that perceive themselves as having lost out: the men who feel that their position of power vis a vis women is threatened, the political elite who fear the emancipation of Kenyans will deprive them of opportunities for extracting rents. As I argue here, the violence we see is part of a backlash against the rights of individuals to determine for themselves how they should lead their lives.

Indeed, it is instructive that while those supporting women’s rights ground their arguments in the freedoms espoused in the constitution and on the laws we have in our books, their opponents are at pains to not just qualify these rights, but to demonize their exercise as a harbinger of chaos. One blogger suggests that the debate “is about everything we are willing to give latitude to as a society. The next thing we will be seeing are prostitutes asking for their trade to be legalized and with the latitude we are extending they will get that, then we will stop asking questions when we see underage girls in night clubs and before we know it corruption will so much be within our rights.”

Another appears to argue that even though assault is a crime, that the victims must somehow be responsible for provoking the attack. “Blaming the touts solely for their ‘misconduct’ is, not only subjective, but also outright biased. Before any reaction, then there must be an action. The Embassava touts did not just decide to strip the woman like mad dogs. The woman might have done something to trigger such a reaction,” he declares, suggesting that habitually exercising the right to dress as she wishes makes her blameworthy.

The fact is the online chauvinists share much the same worldview as the Embassava thugs. They see the attempt to hold the latter to account as a collective condemnation of, as one puts it, “(all) men as sexual perverts, sex pests, sexually starved, naughty minds, rapists, misogynists, etc.” They are unwilling to countenance any challenge to the system that privileges their “choice” over the rights of women.

So whether they realize it or not, those demanding a say in how women dress are the online enablers of offline violence against women. Their open contempt for women’s rights offers succor and dubious intellectual cover to those who go even further. So just as we insist that the perpetrators of violence against women are swiftly brought to book, we must not ignore the pernicious ideology of entitlement to women’s bodies that feeds it.

While respecting –and even defending- the right of people to express their views, as abhorrent and stupid as those views may be, we must not cede online spaces to the chauvinists. Those who truly believe that women are human beings, that they should be able to dress in any way they please and walk down our streets unmolested, that no Kenyan should have the right to tell another how they should live their lives, must speak up. We must not accept to be silenced by the demagogues.

A Constitution For All

A version of this article was previously published in the Star.

This week marks the fourth anniversary of the promulgation of the Kenyan constitution.  The significance of a country’s constitutional history cannot be overstated, for it is as a reminder of where the nation has come from and the lessons it has learnt. On this anniversary, Kenyans could do worse than take some time to reflect on the process of constitution-making and on the document that process has produced.

Much of the last quarter century of our collective history was spent trying to undo the original sin committed at independence. In that time, we have been trying to reverse the dismantling of the majimbo constitution, concentration of power in the person of the president as well as the dilution of the bill of rights. The terms we use may be different but the arguments are still largely the same ones our parents and grandparents had. The concerns over marginalisation and exclusion remain.

In a paper titled Amending the Constitution -Learning from History that he presented at an International Commission of Jurists conference in 1992, our current Attorney-General , Dr Githu Muigai, noted what had happened in the first decade following independence: "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Effectively, as the Truth Justice and Reconciliation Commission noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the “Second Liberation” that started in 1990 and gave birth to the current constitution. And while it was very much a struggle to tame the “authoritarian administrative structure,” it also became conflated with notions of good governance, accountability and transparency, which made Kenya part of a global trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the struggle among politicians for governance arrangements that would suit them. There appears to be a dangerous sentiment that the underlying causes were either resolved by the promulgation of the constitution or that they can be safely swept under the carpet of “accept and move on.” In an article published over the weekend Dr Nzamba Kitonga, the former Chairman of the Committee of Experts that drafted the 2010 constitution, essentially admits that the process was hijacked by the political elite and details how, following the mind games played at Naivasha, the committee was “advised not to tamper with the pure presidential system agreement and several other new clauses.”

So much for a “people driven constitution”. But Dr Kitonga goes ahead to legitimate this usurpation, privileging the arrangements for electoral losers and reducing the role of “Wanjiku” in government to cheering on the sidelines. “In the rural areas wananchi are also grumbling,” he asserts.  “They say they no longer “feel” the government. They long for the days when an MP/minister would visit the grassroots to be “with them” and explain government policies at their level and in their grassroots language — including dancing, singing, cheering and generally inspiring the crowd.”

And so it is today that our current constitutional debates seem to be more about accommodating politicians and their greed and relegating the role of the people to performing traditional gigs for the elites entertainment. Governance has taken a back seat.

There has been little outrage so far this week when Nairobi County Deputy Governor revealed that when the defunct Nairobi Metropolitan Ministry spent nearly Kshs 437 million installinga camera and traffic lights system meant to tackle the capital’s notorious traffic jams, it neglected to include the synchronisation software that would actually make the system work. The fact that the Pakistani city of Peshawar was reportedly going to spend the equivalent of less than Kshs 20 million installing 260 cameras and three control rooms to monitor them while we spent more than twenty times that amount installing 51 (or that we eventually only installed 42 for the same cost) does not seem to bother most people.

The fact is, as the above example demonstrates, despite the change in constitutions the rapacious colonial state endures. Sadly, we have divorced our governance arrangements from the role they are meant to play in preventing such irregularities. Once again the constitution is in danger of being downgraded to fit our corrupt circumstance instead of being the mould into which our governance fits.  So today, we would much rather go to the streets to protest theft of political power (which is really only the opportunity to “eat”) than to protest the impoverishment and marginalisation that this has brought. I fear we are slipping back into the mould where we would much rather starve with one of our own in power, than set up systems that ensure all have square meals. We are still content with the symbols of democracy and “development” while forsaking the substance. All this reveals, as one of my friends put it, “how hollow the transformation wrought by the new constitution.”

It has been said time and again that constitutions live, not on paper, but in the hearts of the people. If they are to be any good, they have got to work in the interests of the many, not of the few. Our political elites have for too long enjoyed too many seats at the constitutional table and their voices and ambitions have for too long been allowed to crowd out the call from the masses for accountable governance that responds to their needs, that defends them from the indignities of deprivation and poverty, protects them from wanton violence, treats them as human beings everywhere deserve to be treated, ensures they have the opportunity to actualize their dreams and that offers a better future for their children.

As we mark the fourth anniversary of the promulgation of our constitution, and as we debate the possibilities and opportunities of amending it, it is my desperate –some might say desperately unrealistic– hope that it is the welfare of wananchi, not that of the current crop of wenyenchi, that will be the uppermost consideration animating our conversations.

The Change Merry-Go-Round

The problem with revolutions is that they tend to go round in circles. Over the last half-century, Kenya has seemed to undergo its own slow-motion revolution. We have gone from an oppressive and extractive colonial state, through a repressed one-party dictatorship to a relatively open, somewhat prospering, pseudo-democracy. Two years ago, we made the crowning achievement -for the second time in our history, we had a new constitution.

Yet, it is still easy to despair with Kenya. We still have pretty much the same crooked politicians, the same corrupt and brutal police, a judiciary that despite "radical surgery," struggles with the concept of justice. Poverty and disease and ignorance and violence are still running amok. A lot of times it just feels like we are aboard a change merry-go-round. The more we change things, the more they remain the same. After twenty years of reform, we seem to have to have ended up right back where we started. We created new constitutional arrangements but, at its core, the country didn't change.

It remains very much the product of the colonial past. As the Truth, Justice and Reconciliation Commission reminded us this week, the colonial state was never dismantled. We simply exchanged one bunch of oppressors for another. The relationship between the powerful and the people remains one based on exploitation, not the platitudes of service we are treated to every day. It is still very much a country that defines success in terms of the fortunes of its government, not those of its citizens.

Our first attempt at independence to pour the new constitutional wine into the old wineskins of the of this colonial edifice did not result in the bursting of the latter. Rather, it was the constitution that was extensively mangled, spawning decades of political, economic and social crises.

It's a lesson we should have learnt by now. Our legalistic approach to all kinds of social problems has not worked. The alcoholism ravaging our communities has not been assuaged by passing laws on opening hours. Ever more copious layers of legislation have not brought order to our roads and illegal drugs are still easily available. Since we do not bother addressing the underlying reasons for destructive behaviour, new laws are either ignored or perverted and sometimes create even worse problems.

Similarly, changing constitutional arrangements without changing the nature of these understandings between citizens and those who exercise the authority of the state, and between the citizens themselves, is thus futile. As was the case 50 years ago, a new constitution will not automatically erase either the century-old practices and attitudes in institutions like the police, or the ingrained habits of those who consider themselves our lords and masters.

A new constitution is therefore insufficient to wring the change we desire. We now need to do the work that the independence generation failed to do. We need to engineer a rebirth of the nation. In a sense the real problem with Kenya was always that it's full of Kenyans and to change that means refashioning the very idea of what it means to be Kenyan.

During the struggle for the second liberation, there was much talk of "the Kenya we want". Not much was said about the the Kenyans we want. We must begin there. We could choose to inscribe the constitution on our hearts, to affirm the value of universal values of life, dignity, and liberty; to begin to measure our progress by the quality of life and opportunities enjoyed by our poorest citizens as opposed to that of our richest.

We cannot change the past but we can make our peace with it, and decide not to let it define us. And that's why I think the TJRC report is so important. It is about releasing Kenyans from the shackles of the past and so freeing them to choose their future. It can be the start of a real national self-examination. If we have the courage to do this, then we can finally begin to learn from the mistakes of the past instead of being condemned to repeat them.

Brave New Kenya

It’s less than a week since the Supreme Court put a stamp of legality, if not exactly credibility, on the presidential election. As Uhuru Kenyatta prepares to be sworn in, and the country is tries to regain some semblance of normality, it is hard not to feel that something fundamental has changed.

Not long after Chief Justice Willy Mutunga announced the decision, TV anchors were giggling at footage of a woman being forcefully undressed and her undergarments strewn about (They would later apparently issue grudging apologies on Twitter). “I don’t know whether I should laugh or get mad,” says one, apparently unsure of what would be the appropriate response to the public humiliation of a woman just because an ignorant mob did not approve of the way she was dressed. A few months ago, they would probably have been screaming blue murder. In this new era, there also seems to be little appetite for the prosecution of the attackers. In fact, the media appears determined to sweep the whole incident under the national carpet.

Neither has much been made of the case of blogger Robert Alai, who was arrested and charged in criminal court with posting offensive, annoying and false message on his twitter account about Head of Civil Service Francis Kimemia. The clamour to erase criminal libel laws has apparently today grown into a deafening silence.

It feels like something is amiss when one sees reports (later denied) of the government apparently contemplating giving sole broadcasting rights to a public event, not to mention one as important as the inauguration, to a private company. Or when one of the most respected and sober commentators appears to agree with the most rabid characterisation of prominent human rights and political reform activists, claiming they are leading us “into the dark embrace of imperial slavery.”

Perhaps we are just trying to find our bearings after weathering the electoral storm. However, I just can’t shake the feeling that our trust in the rusty moral compass that has been our guide through the political storms of the last quarter of a century has been somehow shaken.

In these new waters, the familiar landmarks are still there but seem strangely reversed. The villains of yesterday have become the new heroes of today; the rehabilitation of Daniel Moi as a lovable and wise elder statesman is almost as complete as is the demonization of those who stood against him. In a darkly ironic twist, during the election season one paint manufacturer saw fit to run ads calling for brightly coloured "peace, love, unity," the slogan behind which Moi had wreaked havoc with our lives and livelihoods. Those who oppose impunity, who take a stand against corruption and electoral malpractice, who demand the freedom to speak their thoughts or dress as they wish - these are today’s enemies.

Today, success seems measured in monetary terms. When one paper this week reported on the recently introduced traffic rules, the piece focussed on the fact that the government had collected Kshs. 500 million in fines from the over 2000 drivers that were being arrested daily. That the laws had had little effect in reducing deaths (road users were still dying at the rate of over 280 per month) merited only a passing mention in an obscure paragraph at the end of the article.

When assessing the performance of the Kibaki government, much is said of the improvements in infrastructure and economic growth, most of it ignoring the fact that when measured by longevity, knowledge, and a decent standard of living for its populace, the country's score, though improved, still comes in pretty much near the bottom of the global pile. Equally, when we discuss the new constitution, we focus on the devolution of resources and relatively little ink is spilt discussing the Bill of Rights.

I can’t help wondering whether we have just struck a grand bargain with our murderous elite. Whether we have not traded in justice for peace and values for prosperity. A laptop for our kids and superhighways, virtual and real –these are today’s struggles. Notions of equality and accountability are so yesterday. The imperialist West with its flaky notions of freedom and human rights and its flailing economies no longer holds any attraction for us. We prefer the hard pragmatists in the East. Our new political model is China. What does it matter if you break a few eggs to bake the national cake? Liberal democracy may sound nice but it won’t put food on the table.

Scaling Olympus

US psychologist, Dr. Wade Noble, defined power as the ability to define reality and to have other people respond to that definition as if it were their own. Taking this to heart, Kenya’s political class have become adept at translating their personal experiences into common realities. They are relentless in articulating their particular version of reality, and never miss an opportunity be it at community forums, social functions such as funerals and weddings, and even Sunday church services. Theirs is by far the dominant voice in our mass media.

As a result, their personal issues quickly morph into communal rivalries and, conversely everybody it seems has a stake in their personal success. Or should I say, perversely? For thus the victims of the 2008 post-election violence have become convinced that it serves their interest when no one is punished for their dispossession or for the murder of their relatives. And thus we are convinced of the overwhelmingly urgent need to investigate a helicopter crash involving a few VIPs while continuing to ignore the daily carnage ordinary folks face on our roads.

So what is the narrative they sell? First they have convinced us that the political space properly belongs to politicians. It is their very own Olympus. The rest of us mortals can once in a while help decide who ascends into their blessed company, but that is where our participation ends.

Secondly, Olympus does not operate according to the rules and values of ordinary men. While we down here may value honour and think that it has something to do with knowing and doing what is morally right, in the heavens honor is a title. One may lie, steal, and betray friends and confidences, conspire to maim and murder. But, as Mark Antony might say, they are all Honourable men (and women). Furthermore, once raptured to the heavenly kingdom, the gods are cleansed of all earthly transgression and so vast are their powers that they can swop right for wrong.

Finally, though the gods on Olympus are endowed with infinite wisdom, they dare not waste it on the mundane problems of mortals. They have bigger fish to fry (and eat) which imposes considerable strain on the basic principle of the democratic exercise, that of assuring the nation’s citizens a voice in its affairs.

This narrative about politics needs to change. For as long as we see it as a dirty game played by politicians, it will continue to be about power and position, not about solutions. Today’s political narratives are divorced from people’s everyday lives. All politics is local is a maxim that doesn’t seem to apply to us. Even at the local level, it is not local issues that matter. We may have devolved our system of government but our politics remain stubbornly centralised. Ask any elected official about his programme and he will in all likelihood point you to the manifesto his national party issued a few days to the election and which he has probably not been bothered to read.

During the campaigns, it was notable how much the Presidential race overshadowed local races. Figures from the Independent Elections and Boundaries Commission show that on Election Day, communities with no direct ethnic stake in either of the two major coalition presidential tickets were less likely to get out and vote. This is illustrative of the low priority local issues are accorded. We are probably more invested in who wins the English Premier League than in who runs our county assemblies. As one commentator put it : “Down-ticket candidates ... allowed their individual positions to be subsumed by the presidential contenders. Instead of running on local issues, which will ultimately have the most impact on the lives of individual voters, most [were] hoping to ride the top-of-the-ticket platform to victory. Which [left] voters looking to make informed choices with little information.”

We have allowed our politics to become about coronating a President on Election Day, not about choosing between competing  visions on how to solve people's problems. We have reduced citizen participation in our democracy to standing in line and stashing ballots into ballot boxes once every 5 years. The rest of the time, we let the politicians do their thing, meaning voters have little involvement in local institutions. Civic education, again is reduced to the art of teaching voters how and in which box to cast their vote and how to distinguish between green and peach (or whatever that colour was). There is little effort expended to explain to citizens how devolution works. Two years after it was passed, the constitution passeth all understanding except to those privileged with a law degree.

As a result, instead of helping us truly and honestly identify issues and resolve differences, our politics generates a narrative that, as another observer noted, sweeps differences under the rug and replaces them with nationalistic propaganda. The lack of genuine interaction, dialogue and reconciliation perpetuates a culture of fear. Fear of the other, of history, of reality.

We need, instead to build a new brand of politics from the bottom up; to re-imagine Kenya as a nation that attracts, and not compels, the loyalty of its people, both as individuals and in their communities. We must reclaim the spaces and vernacular for honest conversations. Words like equality, justice and truth must cease to be old shibboleths rolling off politicians’ lips and become our real passwords to a better Kenya.

Our politics should give our people the means to discuss local problems without being drowned out by the national conversation; to ask the questions they really want answered and raise the issues close to their hearts without the fear that they will be ignored, prosecuted or labelled "tribalists" or "hate-mongers." In short, give them the means to articulate their own reality and get the politicians to respond to that as if it were their own. After all, that is what democracy should be all about.

Holier Than Thou?

Last week, when retired Anglican Archbishop David Gitari warned the Kenyan church that it risked being defeated at the referendum if it maintains the "No" stand at the referendum on the Proposed Constitution, he underlined the fact that the country’s most venerable institution stands at a critical crossroads in its illustrious career.

The church objects to the section of Article 26 that empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment. Christian leaders are also opposed to the retention of Kadhis’ courts in the proposed Constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a Kadhi.

However, with most players across the political spectrum, including civil society, rallying behind the draft, the church is being confronted with the awkward possibility of being on the wrong side of history. The situation has also raised fundamental questions regarding the historical role of religion in the country’s political development and whether it has been a force for change or a tool of appeasement.

In his introduction to Religion and Politics in Kenya: Essays in Honour of a Meddlesome Priest, Ben Knighton, who teaches at the Africa Studies Centre in the University of Oxford, notes that Evangelical Lutherans of the Church Missionary Society reached Buganda in 1877 closely followed by Roman Catholic missionary orders. The proposed Uganda Railway led to a host of missions from many denominations targeting the region, but faced with the Anglican–Roman Catholic duopoly in Uganda, they stopped off in the East African Protectorate that became Kenya Colony. In fact “in many localities of Kenya, it was the missionary who took up residence before the district officer.”

A 1998 article penned by Rev Dr Timothy Njoya states: “The first thing Christianity did in Africa was to make people surrender their sovereignty to church hierarchies and governments.” According to John Lonsdale, retired professor of Modern African History at the University of Cambridge and Fellow of Trinity College, the missionaries saw colonial rule as good for the natives, who, to them, appeared to be barbarous polygamists, afflicted by famine and disease — a savage and suffering people, for whom British rule was clearly a blessing.

When they did speak out against the heavy taxes and forced labour imposed on Africans for the benefit of white settlers, it was not out of outrage at a perceived injustice. Thinking African men guilty of sinful sloth, they had already concluded that forced labour was indeed a good thing, if properly supervised by a British official. They only proposed that those African men who could prove they had worked for themselves, and their families, for a season, be exempted from conscription. This was meant to protect their African converts, who were deemed to have been redeemed from their laziness.

It is ironic, therefore, that while the church for the most part desisted from openly criticising the injustices of colonialism, it nonetheless sired the leadership of the African nationalist movement. According to Knighton, the Church of Scotland, in Thogoto (Kikuyu for Scot) and the influential Anglican centre and mother church at Kabete between them created the Kiambu elite that became the African political establishment of Kenya, “right at the heart of the new nation, ensconced on the pleasant, greener side of the capital.”

In fact, not only was the future African nationalist leadership educated in mission schools, many of them were religiously inclined. Knighton points out that Bildad Kaggia was an itinerant preacher and both Jomo Kenyatta and Jaramogi Oginga Odinga remained deeply devoted their tribal African Instituted Churches to the end of their days.

As the national stature of these leaders grew, so did the profile of the Christian church. A recently released study of religion in sub-Saharan Africa shows a steep rise in the number of Christians between the 1950s and the 1970s accompanied by an equally precipitous drop in adherents to traditional religion. It was in this period that Kenya became a majority Christian country.

After independence, the Africanisation of the economy was mirrored by the ascent of Africans to the leadership of the church. According to Lonsdale, just as an educated political elite, wielding power along ethnic lines was emerging, so a clerical elite was created in the church, also segmented along tribal lines — a result of the colonial policy which permitted different missionary denominations to enjoy separate spheres of territorial, and tribal, influence to stave off religious strife.

With such a confluence of interests, the churches were initially reluctant to criticise the increasingly authoritarian bent of the Kenyatta government. According to Knighton, though the churches had in 1969 belatedly fulminated against Kenyatta’s oathing of the Kikuyu following Tom Mboya’s murder, no individual of the church challenged the nation and “those in authority” in the mass media till David Gitari’s radio sermons following the assassination of J.M. Kariuki in 1975.

When Daniel arap Moi ascended to power following the death of Kenyatta, he too was allowed a long honeymoon period despite the increasingly brutal nature of his dictatorship, especially following the 1982 coup attempt. In fact, when Rev Njoya kicked off the call for the “second independence” with his New Year's Day sermon in 1990, he was vilified even by some church leaders who would later become luminaries in the fight for democracy including the late Archbishop Manasses Kuria, who declared that “the church of the Province of Kenya supports President Moi and the one-party system." Njoya’s own church, the Presbyterian Church of East Africa, warned him against confrontational behaviour toward the government, reiterating the PCEA's unreserved support for President Moi and government.

Eventually though, the tide turned and, in the words of Galia Sabar-Friedman, “the church took upon itself the role of advocating democratisation in Kenya.” However, as Lonsdale observes, its motives may have been somewhat mixed. “Kenya’s churches first protested on behalf of their clerics and their flocks against the Moi regime’s abuses of power in the ‘queue-voting election’ of 1988, not on behalf of the Kenyan citizenry at large. In this they followed, if unknowingly, the example of the missionaries on the issue of forced labour 70 years before.”

Following the routing of Kanu in the 2002 elections, the churches again went AWOL. Knighton says they “lost their critical distance from government.” He singles out the general secretary of the National Council of Churches in Kenya and chairman of the Ufungamano Initiative, Mutava Musyimi, who, “having been a resolute opponent of President Moi was anything but with President Kibaki. Musyimi accepted high-level government appointments, such as chairman of the National Anti-Corruption Campaign Steering Committee, and did not resign after the shameful hounding out of John Githongo and the resignation of the director, Jane Kiragu, in February 2004.”

During the run-up to the 2007 general election, and the ensuing violence, the churches found themselves hopelessly split. According to Knighton, when Kofi Annan searched for a senior churchman of integrity and courage to enable a Kenyan solution to the post-election crisis, he couldn’t find one. They were all regarded as too compromised.

Rev Musyimi, who had resigned his church job, was running for parliament along with several other churchmen and women including Bishop Margaret Wanjiru and Pastor Pius Muiru, who also ran for the presidency. As reported in the Nation, some clergymen even admitted to blessing warriors to engage in violence and inviting politicians to disseminate hate messages that incited people against members of various communities.”

Gitari opposed the candidature of both Wanjiru, and Muiru saying, “Bishops and other ordained church leaders should not seek elective political positions.” He would later lament that “the state and the church have gone to bed together… the church has been compromised… the conscience of society has been wounded.”

Following this debacle, it was not till February 2009, at a nationally televised prayer meeting and fundraising for the Sachangwan and Nakumatt fires in which 160 people were burnt to death, that the churches found their voice, launching a blistering attack on both the president and the prime minister in an attempt to recover the high moral ground.

As the above history demonstrates, the Christian churches have not always, nor even often, stood on the side of ordinary Kenyans. While they have been a potent force for much positive change, it is instructive to note that they have accomplished this primarily in pursuit of their own selfish interests, and not the common welfare. When dictatorship has suited them, they have embraced it and kow-towed to its whims. Their current stand on the constitution should be understood in this light.

It's Public Policy, Stupid!

As the referendum on Kenya’s new constitution draws near, the debate over abortion is taking centre stage and threatening to derail the two-decade old project. Despite the fact that abortion has never been legal in Kenya, and the new draft expressly provides for matters to remain that way, Christian church leaders have vowed to mobilise their followers to reject the document.

The church objects to the section of Article 26 that empowers doctors to end a pregnancy if it endangers the woman’s life or she needs emergency treatment. Christian leaders are also opposed to the retention of Kadhis' courts in the proposed Constitution under Article 169 and 170, which limit their authority to disputes over personal status, marriage, divorce or inheritance, where all the parties are Muslims and agree to take the case to a Kadhi.

The controversy over the termination of pregnancy has pitted the church against pro-choice activists and is largely fought on the battlefields of values and morality. The debate has degenerated into shouting matches over the viability and humanity of foetuses and when exactly life begins. Lost in all this is the fact that, from a public policy perspective, these considerations are largely academic.

Banning abortion, as has been the experience worldwide, does not stop it. A survey of 197 countries carried out by the Guttmacher Institute — a pro-choice reproductive think tank — found that abortion occurs at roughly equal rates in regions where it is legal and regions where it is highly restricted.

Despite the current prohibition on abortion in Kenya’s laws, it is estimated that fully a fifth of total pregnancies in the country are terminated. Couching the ban in new phraseology is unlikely to alter this fact. This is not to say that the law has no effect. For nearly 300,000 women who seek abortions each year, it has proven to be a millstone around their necks.

The report, In Harm’s Way: The Impact Of Kenya’s Restrictive Abortion Law, compiled by the Centre for Reproductive Rights between June 2009 and February 2010, reveals that over 2,600 women die annually in Kenya and 21,000 are hospitalised each year in public hospitals due to complications arising from incomplete and unsafe abortions. The World Health Organisation thinks these numbers are gross underestimations due to underreporting. Worldwide, there are 19 million unsafe abortions every year, and they kill 70,000 women, accounting for 13 percent of maternal deaths. The vast majority occur in countries where abortion is illegal.

Why do so many Kenyan women seek abortions? Women’s activists say that women and girls, thrust uninformed and unprepared into a world of sexual politics, and then abandoned and condemned when their naivety predictably bears fruit, have little choice other than to turn to backstreet quacks. Though fertility levels have been halved since the 1970s, they are still double the government’s target. According to a 2003 study, 25 per cent of Kenyan girls and women aged 15 to 19 are either pregnant or have children. The 2003 Kenya Demographic and Health Survey revealed that close to half of all births are either unwanted or mistimed (wanted later). In a 1998 Alan Guttmacher Institute survey entitled Into a New World, 74 per cent of unmarried women aged 15-19 and 47 per cent of the married women reported their current pregnancy unwanted. If one also considers the pregnancies already terminated, it is then likely that significant majority of all conceptions are undesired and unplanned for.

This is compounded by ignorance of, and lack of access to, contraceptive methods. In 2003 70 per cent of all adolescents in the country engaged in unprotected sex and 85 per cent of girls and women aged 15 to 19 and 72 per cent of women aged 20 to 24 did not use contraceptives. A 1998 survey of Kenyan secondary school students found that only a third of males and a quarter of females knew that contraceptive pills had to be taken by the woman and not by the man; and even fewer knew the pills had to be taken daily, not just before sex. A report in the Nation last year revealed that young women used emergency pill far more regularly than recommended and that when it came to choosing emergency contraception, they consulted their schoolmates, the Internet and their boyfriends.

The consequences of pregnancy can be grim. The Nairobi-based Centre for the Study of Adolescence estimates that up to 13,000 Kenyan girls drop out of school every year as a result of pregnancy. These young girls are often treated as outcasts by their families. Many migrate to cities where they face unemployment, health risks and malnutrition. This, combined with the fact that the responsibility to care for a child born out of wedlock is placed squarely on the mother, condemns many to lives of hardship and grinding poverty.

The case of Ruth Njeri, a 20-year old domestic worker, is typical. She had to leave school after getting pregnant and then moved to Nairobi from her village in the Nakuru district in search of work as her father refused to support her or the baby. "I had completed my Form-IV (higher secondary) but after the child was born neither my family nor my school wanted me back. If I had wanted to study further at all, I had to go to a different school," she told the Inter Press Service news agency.

Many women already in informal or casual employment also fear for their jobs as employers are generally unwilling to afford them maternity leave. The social stigma too, can be overwhelming. “My parents would probably kick me out should they find out that I’m sexually active, so I don’t even want to imagine their reaction should I get pregnant today,” Sheila, a 22-year-old who is about to graduate from college, told the Nation last year. A Population Council study indicated that fear of pregnancy outweighs fear of contracting the HIV virus among E-pill (morning after pill) users — 79 per cent cited pregnancy as their biggest fear, while only 45 per cent thought they were at risk of contracting HIV through unprotected sex.

Further, despite the sharp decline in the number of women dying at childbirth over the past decade, Kenya still remains one of the most dangerous places in the world to give birth, ranking 13th out of 181 countries. In 2008, according to a study published in The Lancet, 6,200 Kenyan women died in childbirth, translating into roughly 413 maternal deaths per 100,000 live births, compared to a global average of 251 per 100,000 live births.

All this leads to predictable results. Studies in Kenya showed that 47 per cent of all young people below the age of 20 years who got pregnant while in school resorted to abortion. “Young unmarried women would rather seek an abortion than let their parents know that they’re pregnant,” says Wanjiku Gikang’a, a family therapist and university lecturer.

Confronted with these realities, the church prefers to bury its head in the Bible. Apparently caring little for practical concerns, it proposes supposedly eternal and unchanging dictates revealed to a dozen tribes wandering aimlessly in the desert more than 3,000 years ago, as appropriate policy solutions for a globalised world of over 6 billion. In fact, a recent study of religious attitudes in sub-Saharan Africa revealed that 57 per cent of Christians in Kenya favor making Bible the official law of the land. This is similar to Uganda’s Lord’s Resistance Army's deranged suggestion that a complex and modernising country be governed by the Ten Commandments.

The church continues to oppose sex education in schools and the free provision of contraception in order to “protect” adolescents’ morality. In 1997, the Catholic Church and anti-abortion groups forced the government to shelve a sessional paper on family life education that was to be discussed by parliament. If the paper had been adopted, sex education would have been introduced in schools and integrated with primary health care. The document would have been the basis for making students aware of the dangers of adolescent pregnancy, abortion, drug abuse, HIV/AIDS, and sexually transmitted diseases.

The Catholic Church’s view, that sex education would itself lead to sexual immorality at too early age, resulting in more teenage pregnancy, backstreet abortions and further spread of HIV/AIDS, is contradicted by the findings of Scholasticah Nganda, a member of the Sisters of Mercy, a Catholic women's order, and a lecturer at Kenyatta University's Department of Psychology. She states that primary school boys and girls are already engaged in sex and they are likely to continue to engage in premarital sex with or without sex education, citing a 2003 study of the policy of the Catholic Church that revealed that 81 per cent of Protestants, and 47 per cent of Catholics as well as 81.8per cent of health workers supported the introduction of sex education in schools.

In addition, while the churches paint a picture of a world where God wills every pregnancy to go to term, this is at odds with the evidence of nature. Spontaneous abortion (sometimes referred to as miscarriage) is a common experience for women. It is estimated that between 25 and 50 per cent of all conceptions spontaneously abort. Researchers do not have an exact figure due to the fact that when this occurs very early on, many women do not even know that they were ever pregnant. Fully a third of all pregnancies are spontaneously terminated by week 10 LMP (Last Menstrual Period), with studies suggesting reasons as morally irrelevant as age (one study found that pregnancies from men younger than 25 are 40 per cent less likely to end in miscarriage than those from men 25-29 years; women over 45 spontaneously abort 75 per cent of the time).

This is not to say that the unborn should be fair game. Each abortion, spontaneous or not, is a tragedy for it involves the death of a human being. The questions for the state — which unlike the church answers to the citizenry and not to God — should be these: What policy would lead to the least number of abortions? Is deterrence achieved by criminalising the act? Does legalising abortion lead to an increase in demand for the procedure?

As the evidence shows, legal restrictions, however severe, do not lead to fewer abortions. And since prohibition does not deter, legalising the procedure will not lead to an increase in the overall number of terminations — it just moves abortions from the backstreet and into proper medical facilities, saving women’s lives.

Indeed, when combined with sex education and the availability of contraception, a legal regime actually lowers demand for abortion. According to the 1998 Guttmacher Institute survey, nearly 46 million abortions were performed worldwide that year. Five years later, in 2003, despite the fact that 19 countries had liberalised their abortion laws over the period, and only three had tightened them, the total number of abortions worldwide had fallen to 41.5 million — amazing when one takes into account population growth. However, the number of unsafe abortions, which are overwhelmingly illegal, remained almost static. Therefore all the reductions happened in countries where the procedure was legal.

Researchers have also noted that while liberalisation was a key element in improving women's access to safer terminations and lowering demand, it was not the only factor. Even in countries where abortion is legal, lack of availability and cost still created a barrier. In India, for example, where terminations are legally allowed for a variety of reasons, some 6 million took place outside the formal health system. Other factors that were seen to be relevant to reducing the number of terminations included effective family planning services — which currently cost four times less than the public bill for sorting out conditions, from sepsis to organ failure, that result from botched abortions.

In much of Eastern Europe, where abortion was treated as a form of birth control, abortion rates dropped by 50 per cent as contraceptives became more widely available while globally, the number of married women of childbearing age with access to contraception had increased from 54 per cent in 1990 to 63 per cent in 2003.

Therefore, if public policy aims at reducing the number of abortions, securing the health of women and girls, and saving money in the process, then criminalising the procedure is not the solution. Legal terminations coupled with sex education, family planning services, and knowledge about as well as availability of contraception, are indisputably the way to go. In fact, addressing the 37th session of the UN's Commission on Population and Development in 2004, the then chief executive officer of the National Co-ordination Agency for Population and Development in the Ministry of Planning and National Development, Dr Richard Muga, affirmed that Kenya upheld the 1994 Cairo Plan of Action, which called for the integration of sexual education into the school curriculum and invited open debate on controversial issues, including abortion.

Even with all these measures in place, unwanted pregnancies, though greatly reduced in number, will continue to occur. To further reduce the instances of these turning into abortion cases, the government, since the early years of this century, has reversed the situation that previously saw pregnant schoolgirls barred from continuing their studies. The church could help out here by teaching its flock to be more accommodating and tolerant of those who have “fallen by the wayside” — those, incidentally, that Christ said were the ones he came to save.

Snake Mail

In addition to this email that M has dispatched with deserved contempt, I also received the following FAQs from our churches. My reactions to both underneath.

Kenya Christian Leaders Forum
Frequently Asked Questions on Contentious Issues in the Constitution Review Process


1. Why is a National Constitution important?
The Constitution of a nation is the most important governance document. It is the mother and father of all laws. Any law that is in conflict with the Constitution is null and void. It defines the people, their values and the nation and its destiny. Kenya 's current constitution was written in London with the help of the British colonialist. It is under review to correct past anomalies and ensure justice, fairness and equity for everyone.
2. Why are Christians against Kadhis Courts in the Draft Constitution?
Christians are against the inclusion of Kadhis Courts because it is an outright injustice to other religions. Kenya is a multi-religious society! Christians' objections to the inclusion of Kadhi Courts were ignored by the government, the Constitution of Kenya Review Commission, the BOMAS gathering, the Committee of Experts and most recently the Parliamentary Select Committee. Christians are left with no choice but to vote against the new Constitution unless the Courts are removed.
3. Are Christians against Muslims?
No. Christians are not against Muslims. They are against injustice and unfairness in the draft constitution perpetrated by the Government and the review organs.
4. Why didn't Christians request for Christian Courts?
Christians seek for a just society for all Kenyans, not only the rights of Christians. They advocated for an effective executive with an accountable President, an effective Parliament, an efficient judiciary, and respect for the rights and responsibilities that promote an equitable, just and moral values based society. The Constitution must set up a Judiciary that is good for all Kenyans.
5. How come Kadhis Court was not identified as a contentious issue by the Committee of experts?
Christians submitted thousands of memoranda to the Committee of Experts rejecting the inclusion of Kadhis courts in the constitution. The Committee of Experts deliberately refused to identify Kadhis Courts as a contentious issue. Instead, the Committee of Experts that was supposed to be impartial, was partisan and openly campaigned for inclusion of Kadhis Courts in the constitution. We now think it was deliberate because Muslims have dominated the Committee of Experts and the Parliamentary Select Committee.
6. Are there Christian MPs in Parliament who can speak for Christians the way Muslim MPs do?
There are Christian members of Parliament, but they have been silent. They have not stood for what is right and just. Church leaders are calling on Christian MPs to stand up and be counted. In future, we urge you as a citizen to vote for those people who will not sit by and watch as our country is sold out. Meanwhile, Christians must organize themselves under the Lords guidance and speak the truth even if MPs fail us.
7. So what do Christians want?
It is not what Christians want but rather what Kenyans want. Kenyans want a constitution that defines how society is organized on the basis of justice, truth, fairness, effective checks and balances, and an effective bill of rights for all Kenyans. With regard to religion, it should be one that provides for freedom of worship to people of all faiths under the Bill of Rights. The Constitution of Kenya must remain neutral with regard to religion, in order to offer equal protection to the people of all religions.
8. Why are Christians opposed to Kadhis courts yet they have not harmed any body?
The fact that the Kadhi Courts did not harm non-Muslims does not mean it was right for them to be included in the Constitution. It was wrong and discriminatory against the people of other faiths from the beginning. Kenyans' patience since independence must not be taken for granted. It is time to correct all wrong things. Muslims should by now be an integral part of the Kenyan community not requiring special treatment or protection! The constitution must not divide the people along religious or other lines. Kenyans want one nation, one land, one law that caters for all irrespective of religious affiliation. This is the practice in stable democracies around the world. We should not let a new constitution to perpetuate past injustices. Christ said: "And no one pours new wine into old wineskins. If he does, the wine will burst the skins, and both the wine and the wineskins will be ruined. No, he pours new wine into new wineskins” (Mark 2:22). Inclusion of Kadhis Courts in the new constitution is like pouring new wine into old wineskins. It will burst the skins.
9. Who qualifies to be a Kadhi?
A Kadhi is a Muslim judge or magistrate. While many claim that the Kadhi is a purely judicial officer who serves in a Kadhis Court , they in Kenya they perform religious functions. The Chief Kadhi declares the beginning of Ramadhan a major Muslim religious festival. As an officer of government, it is discriminatory that, to be a Kadhi, one must profess the MUSLIM RELIGION. This means even if a Christian possesses knowledge of the MUSLIM LAW applicable to any SECTS OF MUSLIMS, he cannot serve as a Kadhi, meanwhile Muslims can preside over cases of non Muslims!
10. What law does Kadhis Court enforce?
Kadhis Courts enforce Islamic law commonly referred to as Sharia. Sharia is the Arabic word where our Kiswahili word Sheria is borrowed from. Sharia is the law system based on the the Koran, the Sunna, older Arabic law systems, parallel traditions, and the work of Muslim scholars over the two first centuries of Islam.
11. What are the implications of the inclusion of Kadhis Courts in the Constitution?
The inclusion of Islamic Sharia courts in the constitution divides Kenyans along religious lines. It would reinforce two classes of Kenyans, Muslims and the rest. Kenyans are seeking a constitution that unites.
12. Is the draft constitution Christian?
No. The draft Constitution is a collection of all just and fair laws from any source where they may be found. It draws from Judeo-Christian principles of equality, fairness, justice and equity does not make it Christian! These are values recognized by people from all religions, ethnic communities or professional backgrounds. We as Kenyans do not want a Christian or Muslim or Hindu constitution. We want a Kenyan constitution made by all Kenyans for all Kenyans. Unfortunately, as it is now, the constitution appears to be Islamic! It mentions the word Muslim 6 times, and Kadhis 5 times. It does not mention the word Christian at all!
13. What have Christians proposed?
That the Constitution recognizes every Kenyans freedom of worship. That every Kenyan worships and submits to the religion they choose at their own cost and not government's cost. We appeal that all religious beliefs and practices be left to the Churches, Mosques and Temples where they belong.
14. Did Jomo Kenyatta agree with the Sultan to entrench Kadhis Court in the constitution?
No. Kenyatta undertook to the Sultan of Zanzibar to only preserve the jurisdiction of Kadhis courts. The Kadhi was to operate in the ten mile Coastal strip. While Section 66 of the current constitution provides that the Chief Kadhi and the Kadhis “shall each be empowered to hold a Kadhis court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may be so prescribed”, the government violated the constitution and established Kadhis Courts in areas which are outside the ten mile coastal strip like. Christians filed a case in court to challenge this wanton violation of the constitution of Kenya .
15. If Christians succeed in rejecting the constitution during the referendum, will we not still have Kadhis Courts under the current Constitution any way?
Christians are actively involved in this matter and will not stop at a No vote at the referendum. Christians filed a case in the High Court in 2004 to declare Kadhis Court unconstitutional. The hearing ended in February 2009. It is regrettable that time has lapsed and the High Court is yet to deliver the judgment. Christians will next sponsor a motion in Parliament to amend the current constitution to delete section 66 which provides for Kadhis Court .
16. Should Kenyans reject the draft constitution just because it has Kadhis Courts?
Yes. If you had a soda with a small amount of poison, would you drink it? Let us not be deceived by people who either do not have the interest of Kenya at heart or are unable to see divisiveness of this issue. If they are serious and want us to accept the new constitution, let them delete all references to the Kadhis Court in the constitution.
17. Is it true that the Bill of Rights shall not apply to Muslims?
Yes. Muslims are the only Kenyans who are allowed to violate the Bill of Rights. Kenyans should not allow this to happen. Let every Kenyan be equal before the law of the land and particularly the Bill of Rights.
18. If Christians succeed in rejecting the Kadhis Court, will the Muslims unleash violence?
No. Christians and Kenyans in general should not allow themselves to be manipulated and intimidated by the threat of violence. Kenya is a democracy, Muslims must argue with ideas and the ballot box, not violence. In any case, it is hoped that Muslims in Kenya are peace loving and will respect the decision of Kenyans. The threat by some Muslim leaders to secede from Kenya is a matter that the security forces are able to handle.
19. What about abortion?
Abortion is the willful termination of a woman's pregnancy on the basis that it is unwanted. A woman may herself be under pressure because she desires to hide the fact or may be under pressure from other person(s) for the same reasons
20. When does life begin?
Life begins at Conception. All doctors who claim that life begins at birth are professionally untrustworthy, because the fetus in the mother's womb are usually alive. Whenever a fetus dies, it is always an emergency to operate and to remove it.
21. What do Pro-abortionists want?
Their interest is to make money from vulnerable women. In the course of the abortion process the life of the woman is endangered, their conscience and faith are trashed and they become guilty of murder.
22. What does God say about the life of the unborn?
The unborn babies are complete human beings created in the image of God. Any one who aborts them is a murderer. God called Jeremiah in the mother's womb (Jer. 1:4-5). When Mary after she became pregnant met Elizabeth , John leaped in her womb to rejoice at Jesus. (Lk 1:41-44). God commanded that His people in the sixth commandment, 'Thou shalt not kill.' (Ex 20:13) Abortion is murder, the killing of the unborn innocents.
23. Does anti-abortion law hinder the practice of medicine?
No. The constitution allows a doctor, upon medical examination of a pregnant woman, to terminate a pregnancy if the life of the mother faces a medical condition that leads to the death of both mother and baby.
24. What about Marriage?
The Constitution must state that Marriage in Kenya is between two adults of the opposite sex. It must not allow any type of marriage which God calls an abomination. For us as Kenyans, let us pray that God blesses our men and women to form godly and healthy marriages.
25. What can I do as a Kenyan?
As a citizen of this nation you must make your voice heard on these matters! You also need to do the following:

• You must read and understand the draft Constitution personally
• Petition your Members of Parliament to delete all the sections referring to Kadhis Courts, or that introduce any unacceptable laws in the Constitution.
• Register yourself as a voter, and ensure all your friends register as voters. If Kadhis Courts, pro-abortion laws are included in the constitution ensure that all your friends and yourself vote NO at the referendum.
• Photocopy this paper and pass it to at least 10 more people in your area.
• Pray that God will defeat all the efforts of the people seeking to perpetrate an injustice against Christians and other religions by entrenching the Kadhis Court in the constitution.

Issued by Christian leaders from all Church Denominations, all Umbrella Organizations and all other Christian Organizations in Kenya . These include all Churches and organizations under the NCCK, the KEC, the EAK, the UCCK, and the FEICCK. For comments or further enquiries, contact: info.kcl2010@gmail.com This e-mail address is being protected from spambots. You need JavaScript enabled to view it or communications@ncck.org

It is not very Christian to impute improper motives on others especially when you have not bothered to provide a shred of evidence. To suggest that the head of the IIEc is biased simply because he is a Muslim or that abortionists are simply after vulnerable women's money is beyond contempt and unworthy of people that claim to be dedicated to truth. You have every right to disagree with them, but casting aspersions was something the Pharisees, not Jesus did. Outright lies, such as the one that "persons of Somali ethnicity now out number any others in Kenya" are unbecoming of people claiming to be followers of Christ.

On the merits, the draft constitution is clear. Abortion is illegal. I happen to think that this is wrong as a matter of public policy, and causes more harm than good, but this are not considerations the church burdens itself with. Banning abortion, as has been the experience worldwide, will not stop it. The restriction has little to do with protecting babies (which it doesn't) and everything to do with declaring a self-righteous statement of principle at the expense of our women and girls. While they die in their thousands at the hands of quacks, the churches prefer to listen, not to their screams, but to its own voice.

The church opposes sex education in schools and the free provision of contraception under the guise of protecting our adolescents morality, burying its head in the sand when confronted with overwhelming evidence that they (our young ones) are having sex regardless. I would much prefer they did it with the knowledge of how to protect themselves, but churchmen rather like to listen to themselves talk.

Kenyans have striven for a new constitution for 2 decades, shedding a lot of blood, sweat and tears in the process. The document we will be presented with at the referendum will not be perfect; no constitution ever is hence the amendment procedure. But because of Kadhi courts, which the churches themselves admit have not harmed non-Muslims (see no. 8 in the Frequently Asked Questions on Contentious Issues in the Constitution Review Process below), the whole constitution-making project is imperiled. This is narcissism in the extreme. So as we sing out for a new constitutional dispensation, the preachermen are enchanted by their own song.

Finally, Mwalimu Julius Nyerere had a word of advice to his cadres that the churches would do well to heed. "Argue, don't shout!" he told them. The churches may think that they will carry the day because they have the loudest voice, but they are grossly mistaken. For years they have refused to engage in intelligent debate on social issues, preferring instead to shout from their pulpits. This time, their demagoguery will be laid bare.

Cutting a Long Constitution Short

There is no nice way to say it. The Harmonized Draft Constitution of Kenya is long. Very long. Its 165 pages contain more than 60,000 words. The Table of Contents alone is 11 pages. In contrast, the US constitution, the oldest such national document in continuous existence, is only 7800 words. In fact, across the globe, loquacious constitutions seem to be all the rage. In each decade since 1945, the average length of national constitutions has increased by between 1300 and 1900 words. We may not have scaled the heights of the Indian document (whose English translation, at 117,369 words, is the longest national constitution) or that of the State of Alabama (its 357,157 words make India’s look like a model of brevity) but there is cause for concern.

The most obvious problem is that a populace not renowned for its literary appetite, and busied by the daily struggle to keep body and soul together, will be unlikely to put much effort into reading and understanding it. Its very length and the complexity of its legal language will militate against this. James Madison, principle architect of the US Constitution said it best. "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

The constitutional fat strangles the common heart. It is hard to imagine the passion and patriotism that is inspired by

We, the people of Kenya—

ACKNOWLEDGING the supremacy of the Almighty God of all creation:

HONOURING those who heroically struggled to bring freedom and justice to our land:

PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:

RESPECTFUL of the natural environment that is our heritage, and determined to sustain it for the benefit of future generations:

COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:

RECOGNIZING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:

EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:

ADOPT, enact, and give to ourselves and to our future generations, this Constitution.

However, this is not the gravest problem. According to Donald S Lutz, professor of political science at the University of Houston, one of the reasons for replacing a constitution is that it “may have been changed so many times that it is no longer clear what lies under the encrustations, and clarity demands a new beginning.” This is clearly the case with the current constitution of Kenya. It suffers from a surplus of “encrustations” and these have everything to do with its length.

A study of amendments to the 50 US state constitutions between 1789 and 1991 found a strong correlation between the length of a constitution and its average annual rate of amendment. It is not that amendments tend to fatten constitutions (our current constitution, for example, has lost over 18000 words since 1963, despite undergoing numerous amendments). Rather, the interesting bit is that the longer the original length of a constitution, the more likely it is to experience a high rate of amendment. This is principally because the more provisions a constitution has, the more targets there are for amendment. And, of course, it will tread on more toes and attract greater hostility.

Our independence constitution again bears this out. At 117 pages, its 58,000 words were not exactly a picture of shyness. It has since been amended it at a rate 7.5 times faster than its much slimmer US cousin. The monstrosity we have today is the result. The Committee of Experts though, want us to enact an even longer one this time. Why?

Do the extra pages come from expanded provisions governing social, economic and cultural relations? Not likely. A study by H.Van Maarseveen, and Ger van der Tang, published in 1978 found that the length of a constitution was not determined by the inclusion of such provisions; in fact constitutions with these provisions were actually shorter on average than those without. Perhaps surprisingly, it was the enumeration of these rights in a separate chapter that led to an increase in constitutional length and the draft constitution doesn’t have one.

Or perhaps the blabber results from efforts to be precise. Since over time all governments seek broader powers than first authorized, constitutions should be crafted in a way that carefully enumerates and thereby limits their powers. However, each generation has limited knowledge. A constitution, while enacted by a particular generation of citizens, must allow for evolving norms as a result of succeeding generations having greater understanding. In short, it is a living document. Its language should be as precise as necessary to contain the government while remaining vague enough to allow succeeding generations to interpret it to suit their needs. Too restrictive and you strangle it. It is this balancing act that is the genius of the US Constitution. It has never gone out of date. Its vagueness gives rise to new interpretations, such as the constitutional right to privacy which is nowhere expressly asserted, without having to resort to amendments (which in any case should be rare and difficult).

As in many things, brevity in constitution-making is a thing of beauty. So as we faithfully slog through the draft, let us look for ways we can cut the calories. May it turn out like the mini skirt: long enough to cover the essentials, but short enough to keep your interest.

Freedom For The Thought That We Hate

In common with many of my countrymen, I found the recent wedding in London between two homosexual Kenyans quite disturbing. For very different reasons though. Many condemned the ceremony itself, with some even calling for the dreaded Mungiki to take vengeance on the two for allegedly besmirching the name of the House of Mumbi. Nominated MP and Muslim leader Sheikh Mohammed Dor was typical, declaring that the Quran, Bible and Hindu scriptures detest such unions. “It should be discouraged by all means. It is un-African and against our traditions”. Asking that the government to take a stand on moral issues, Sheikh Dor said if nothing is done, more will follow the example of the two men. Mr Otiende Amolo, a member of the Committee of Experts on Constitutional Review, declared that if homosexual and lesbians’ rights were included in the draft, “a majority of Kenyans [would] reject [it] during the forthcoming referendum”.

I, on the other hand, was saddened that these two citizens were not allowed to celebrate their union in their homeland. In fact, the very act of consummation would have landed them behind bars (and that’s assuming they were able to escape the blood-thirsty mob). It led me to ask a series of questions. What gives society the right to determine what two consenting adults may or may not do in the privacy of their own home? Since there was no victim of any kind, no coercion, and nobody was harmed, shouldn’t free citizens, in such circumstances, have the right to do as they please? What does it mean to “include gay and lesbian rights” in the constitution? Is it necessary for us to have language that enumerates each and every right that a citizen may exercise? In a free and just society, what rights are reserved to the individual and which to the state?

Well, let’s start with the question of why we need the state at all. In a natural state, all men, just like animals, are absolutely free to do as they wish, guided only by their instincts. However, the law of the jungle respects only might and does not necessarily foster security or justice. By acting together in civil society and binding ourselves to its laws, we pass from the natural state to a civil state, substituting justice for instinct and right for might. Natural independence is given up in favour of civil liberty, the former being guaranteed only by the individual’s might while the latter is guaranteed by the collective power of the community. This arrangement, what 18th century French philosopher Jean Jacques Rousseau referred to as The Social Contract, substitutes legal equality for natural inequalities in strength and intelligence evident among men.

We become part of a corporate body politic, composed of as many members as there are votes, in which each person in giving himself to all in general, gives himself to no one in particular. There is no member from whom he doesn’t acquire the same rights he himself gives up to others. It is this public person, which is made up of the unification of many persons, that we call the state. The individuals within it are individually known as citizens and they all share equally in the sovereign power and are equally subject to its laws. The state itself is therefore formed for the common good as defined by the general will of the governed. Since the natural, some might say God-given, rights have been relinquished in favour of civil rights, the state now draws its legitimacy not from a higher being, but from its subjects, the people. It is, by definition, secular.

The common good being common to all, there is no question of sacrificing one person or group in the interest of another. Rather, since the state is the result of a negotiation by different interests, it is the common points of agreement that constitute common good. The contemporary ethicist, John Rawls, defines it as "certain general conditions that are...equally to everyone's advantage". Common good is thus a confluence of interests, not moral values or traditions. The latter are important only in as much as they influence an individual’s sense of where his interests lie. At the state level, however, the discussion is only informed by interests. Far from enforcing a moral code, the only thing the state is committed to is the pursuit of common interests through the creation of social systems, institutions, and environments which work in a manner that benefits all persons without elevating the interests of one group over those of another.

Rousseau defined the legitimate political set up as one which “will defend and protect with the whole common force, the person and goods of each associate and in which each, while uniting himself with all, may still obey himself alone and remain as free as before.” Therefore, though in the civil context we give up our absolute natural freedom, in reality we give it up only to the extent that is necessary for the protection of the common good. Whatever is left over is retained by the individual. Crucially, the delegation of specific powers to the state must be done so expressly while, at the same time, any enumeration of civil rights (as in a Bill of Rights) is not to be construed as a limitation on other rights retained by the people. This is the doctrine of limited government.

In delegating power to the government, any decision to alienate or restrict the individual’s freedom must be accompanied by a compelling reason as to why common interest demands it. As John Stuart Mill stated in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign."

Now let’s apply these principles of just governance to the controversy over homosexual rights. It is immediately clear that there is no requirement to spell these out in the Constitution. It is just as apparent that having a large majority that thinks that homosexuality and homosexual marriage is distasteful and to be discouraged doesn’t mean that the forces of law and government should proclaim it illegal and threaten all offenders with prison terms or even death. That is not democracy, as many would like to believe, but rather the tyranny of the majority.

Since obviously no common interest is injured by the consensual union of two men or two women, it would be absurd to suggest that such conduct be expressly outlawed. All being united in one corporate body, it is impossible to attack one group without attacking all and an attack on any person’s rights is an infringement of the rights of all. In the long run the entire society is bound to suffer. An example of what would follow is the Anti-homosexuality bill tabled in Uganda’s Parliament on October 14, 2009. If passed in its current form, the bill would punish parents for not denouncing their gay kids and teachers for not reporting on them. Landlords would not be able to rent out their premises to persons of their choosing, doctors would be compelled to disregard the Hippocratic oath and religious leaders prevented from ministering to the needs of their flock. How any of this promotes societal welfare or the common good is beyond me.

Similarly, around the world the criminalization and interdiction of prostitution (another consensual transaction between adults) creates a situation where women and, increasingly children, are exploited by criminal gangs engaged in a thriving yet unregulated industry. The misguided global War on Drugs (an assault on the individual’s right to get high) also achieves little in terms of reduced drug-taking yet incurs huge financial and material costs for society. Not only do these legal bans have the effect of turning a huge number of otherwise law-abiding citizens into criminals (the incarceration rate for black Americans exceeds that in the Soviet Union at the peak of the Gulag), they drive the trades underground, away from the reach of government regulators. They also foster a culture of violence since disputes between drug dealers cannot be referenced to courts for adjudication.

Another consequence of the bans is it has made trafficking a lucrative enterprise for those willing to take the associated risks, creating vast amounts of tax-free wealth primarily for ruthless and blood-thirsty criminal gangs. These funds are then used to corrupt police and legislatures and to maintain violent insurgencies in much the same way proceeds from “blood diamonds” are used in Africa. In February, the Latin American Commission on Drugs and Democracy, a group headed by three former presidents—Fernando Henrique Cardoso of Brazil, César Gaviria of Colombia and Ernesto Zedillo of Mexico—published a report arguing that the violent crime and corruption generated by drug prohibition is undermining democracy and that the drug war has “failed”. Currently, narcodollars are financing rebellions across the world and destabilizing countries like Mexico, Colombia and Afghanistan.

Now contrast this with the results of the more enlightened policy on tobacco. While the dangers of smoking have been acknowledged for over 30 years, governments have not sought to deal with the vice through bans. Instead, they have concentrated their efforts on public education with the result that smoking rates in the West are falling. Because the industry is legal, we can regulate the contents of cigarettes, whom they are advertised and sold to, and where one may or may not light up. Most importantly, there is no violence associated with the production and sale of cigarettes.

If these other trades were legal, then they too could be regulated and taxed. Children and minors would be protected by legislation requiring a minimum age; prostitutes’ earnings would also be protected from the predation of pimps. Importantly, counselling and help could be offered to prostitutes wishing to leave the profession, and to drug addicts willing to change. As it is now, the law treats them as criminals. Such aid could be easily funded by the taxes levied on the legal enterprises engaging in these ventures.

A final example of what happens when the government loses sight of its objective is the ban on abortions. If, for the sake of argument, we grant that abortions are not in the common interest, then the question for the state (which unlike the church answers to the citizenry and not God), should be this: What policy would lead to the least number of abortions? Opponents of abortion tend instinctively to favour discouraging it with as many legal restrictions as possible. What does the evidence show? Is this the best route to take?

According to a 1995 study, approximately 26 million legal and 20 million illegal abortions were performed worldwide in 1995, resulting in a worldwide abortion rate of 35 per 1,000 women aged 15–44. Among the subregions of the world, Eastern Europe had the highest abortion rate (90 per 1,000) and Western Europe the lowest rate (11 per 1,000). Among countries where abortion is legal without restriction as to reason, the highest abortion rate, 83 per 1,000, was reported for Vietnam and the lowest, seven per 1,000, for Belgium and the Netherlands. Abortion rates are no lower overall in areas where abortion is generally restricted by law (and where many abortions are performed under unsafe conditions) than in areas where abortion is legally permitted.

More recently, a report by the Guttmacher Institute, a pro-choice think-tank, suggests that the number of abortions is declining, particularly in countries with legal regimes. But the number of illegal abortions is staying steady. These backstreet procedures kill an estimated 70,000 women each year.

As the evidence amply demonstrates, legalisation does not lead to a higher incidence of abortion while the current policy of banning the procedure is killing and maiming thousands of women. If our aim is to reduce the number of abortions, and protect our women, then criminalising the procedure is definitely not the way to go. Better we try what works. That means empowering women to make free choices concerning their own bodies, as well as providing sex education including information on reproductive health and contraception.

From the above, it is abundantly clear that when governments and societies breach the social contract they have with their citizens, no good comes of it. Individuals and groups have a right to their opinions and beliefs. There is absolutely no compulsion for anyone to participate in or even approve of any of these acts. If you don’t like it, don’t do it. But that doesn’t give you the right to impose on someone else.

The late US Supreme Court Justice Harry Blackmun said: "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices” adding that “we should be especially sensitive to the rights of those whose choices upset the majority”. In this, he was echoing a famous argument by another late Supreme Court Justice Oliver Wendell Holmes Jr. who stated: "If there is any principle … that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate." Some may prefer that we ignore present temporal realities for the sake of a future spiritual salvation. That, however, is a luxury society and the government can ill afford.