The Past Is Never Dead

“The past is never dead. It’s not even past,” William Faulkner famously wrote in Requiem for a Nun. Over the last week, the truth of that phrase has been reconfirmed in Kenya. Six years ago, the country was almost dissolved in an orgy of bloodletting. Two years later, we inaugurated a new constitution meant to ensure that never happened again. Today, however, the ruling elite is busy recreating the very conditions that led to the violence and making a mockery of the aspirations of millions of our citizens.

It seemed oh so different just over a decade ago, when we thought we were “Unbwogable” and “Yote yawezekana bila Moi”. At the time, as we approached the 2002 general election, everything truly seemed possible and the future was full of promise, not fear. In a very real sense, we were leaving the humiliation, self-doubt, failure, corruption and violence in the past where it belonged, and moving on. 

Sadly though, the past was not through with us. It refused to die. Within months, the politics of ethnicity and corruption would resurface and in five years, we would be at each others’ throat. By 2013, we were most definitely a “bwogable” nation, scared of the thoughts in our own heads and terrified of the future; seeking solace and safety in the very people responsible for taking us to the brink in 2008. 

The past is still not through with us. Last week, we heard the same grumblings about the ethnic preferences characterising presidential appointments that heralded the unravelling of the NARC coalition a decade ago. The same ghost of corruption that haunted NARC from early on is rarely far from nearly every policy proposal made by the Jubilee government. The traditional victimisation and collective punishment of the Somali and Muslim communities is today presented as counter-terrorism policy. 

The imperial presidency has also made a comeback, not only with the unilateral move by President Uhuru Kenyatta to increase the powers of county commissioners but also, apparently, his own to agree security deals worth nearly Kshs. 15 billion to increase its surveillance of Kenyans without seeking Parliamentary approval. He as well chose to ignore the protestations of Parliament and the advice of the Auditor-General and unilaterally authorize the payment of over Kshs. 1 billion to briefcase companies in deals he himself, as leader of the opposition in 2006, had declared to be illegal. 

The past isn’t dead. It refuses to be buried under constitutions that exist on paper but not in hearts. It will not be drowned out by the statements of a government that prefers rhetoric to action. It is not even past but expressed when those close to power can openly discuss the murder of an inconvenient blogger and incite violence against certain communities without fear of prosecution. When the President promises yet more investigations into the AngloLeasing scams while ignoring the Kroll report, which details where the country’s thieving elite has stashed away its ill-gotten gains, and that of the Truth, Justice and Reconciliation Commission which offers us a way to begin addressing the decades of state persecution of the citizenry. When his administration presents a budget which allocates more money for his wife’s “hospitality” than to the entire Anti-Terrorism Police Unit and when it refuses to prosecute the poaching kingpins behind the devastation being wrought on our wildlife today. 

We have spent over a decade trying to outrun the past, to ignore it, to hide from it or to hide it. None of that has worked, nor was it ever likely to. The past is something we must acknowledge as being the stuff of the present. “What’s past is prologue,” wrote Shakespeare and if we do not begin to confront it, it will also be the stuff of our future. It should be clear that as the very conditions of ethnic polarization, concentration of power, inequality and impoverishment that led to the violence in 2008 are re-established they can only bring about similar results. If we are to get off the cycle of polarization, corruption, poverty and violence, we must learn to do things differently. 

Face up to the past instead of trying to escape it. Perhaps instead of ignoring corruption, we decide to do something about it. Instead of victimising innocents, we try to understand our vulnerabilities to terrorism and to improve the capabilities of our security forces to investigate and prosecute the real attackers. Maybe we try to implement the reports that we commission, to enforce the laws that we pass and to implement, not just the letter, but more importantly, the spirit of our constitution. 

A major theme of Faulkner's, according to Gene Andrew Jarrett, Professor and Chair of the English Department at Boston University, is that “the life of the past in the present and in the future has often been a curse, often too difficult to defeat in one blow." A single act, such as passing a constitution or voting out (or in) a particular leader, is thus unlikely to exorcise our demons. However, if we consistently choose to learn from the past instead of running from it, and resist the temptation to indulge our elites in return for the promise of a temporary safety, we can then have a realistic chance of not repeating it.

The Nutty Professor

Prof. Makau Mutua, writing in the Nation, once again demonstrates the folly of seeing a new constitution as a panacea for all that ails Kenya. He correctly characterises the current machinations for miimum reforms as "an ideologically empty battle for raw political power" and goes to great lengths to demonstrate why the proposed reforms would neither deliver a democratised state nor address the critical problems at the heart of our disfunctional democracy. His proposed magic pill? "Holistic and comprehensive constitutional reform" of the sort that we have been chasing for the last twenty years.

In arguing against the minimum changes, he mistakes constitutionalism for a constitution and assumes that our ethnic-based political system is a liability that can be solved through legislative means. He also leads us into a political and intellectual cul-de-sac by implying that the imperial presidency, which is the main obstacle to reform, can be done away with in one fell blow by the enactment of a new constitution.

According to Joel Ngugi, an Assistant Professor of Law at the University of Washington, "a constitution does not mythically solve contested political problems. It provides a shared framework to rework, re-organise, re-funnel, re-think and re-frame these political problems. It is a product of political compromise." The tribal nature of our politics is not something that can be legislated into oblivion. It is a function of our diversity. While our political parties may be ideologically bereft, they do have real ethnic constituencies. The contest for political power is also a struggle by these constituencies for their rightful share of the national cake. Any good constitution would only provide a level playing field for that struggle not change the terms of it. In the light of this, any attempts to regulate the competition for power and make it a fair contest should be welcomed. While recognising that the IPPG compromise was instrumental in ejecting the KANU kleptocrats from State House, Prof. Mutua, by opposing electoral reform, sets the stage for the perpetuation of the equally kleptocratic Kibaki regime in power and further dilution of the prospect of real reform.

Secondly, Prof Mutua states that "the reason for Mr Kibaki’s failure to reform the state is that he inherited an imperial presidency" (a poor choice of words as one would think that an "imperial presidency" would afford, rather than deny, Kibaki an opportunity to change the system, if he so wished). The kind Professor does not, however, burden us with his views on how we would go about dismantling that institution before embarking on constitutional reform considering that the presidency would itself be the main target of those reforms. It is a classic catch 22: we have to remove the powers of the president, so we can have the necessary reforms to remove the powers of the president. I see things differently. The overaching presidency is the product of numerous constitutional amendments. Why not use the same process to cut it down? The sorry history of constitutional reform in Kenya has demonstrated that no incumbent will willingly cede the power of his office, literally at the stroke of a pen, by promulgating a new constitution. However, the same history shows that it is possible to extract a series of minimal compromises that when put together have the effect of instituting a new constitutional order. The ODM's (or LDP's or whatever-meaningless-acronym-they-chose-to-be-known-by's) clamour for minimum changes before the elections, while undoudtedly sef-serving, provides an opprtunity to do just that.