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Kenya’s ‘Katiba’ 10 years later, and King Solomon’s wisdom

On August 27, Kenyans marked the 10th anniversary of the “new” 2010 Constitution (Katiba). On the day - and after the majority of views were almost unanimous - it was a great constitution that had been hijacked by political hyenas.

There were strong accusations about “betrayal”, the constitution being “raped”, and laments about “most of the gains have been reversed”.

There was something very Kenyan about all the anguish. For, among African countries (and I have been to and know quite a few reasonably well) few have the constitutional romanticism one finds in Kenya.

During a period of agitation, you watch the TV news and deep in a far-flung Kenyan town, and the area rubble rouser or the head of a local car wash is railing against some government action, and he is saying how it goes against the constitution.

This civic high-mindedness, though, is not the foundation of the Kenyan constitution. Conflict and death are. A lot of the disappointment and talk of reversals, proceeds from the idea that the 2010 constitution was a victory, and it enshrined the gains won from Kenya’s admittedly long and heroic democratic struggles.

I am one of those who occasionally gets starry-eyed and touts it as one of the most progressive in Africa (in the letter, at least) but watching it unfold at close quarters, I have always been alive to its fragility and how much that view is delusional.

The 2005 draft constitution was defeated in the referendum, in part because critics argued it retained a “dictatorial” presidency, didn’t address regional inequalities through devolution, and its land proposals were seen by some proposals as a sly soil grab. The 2010 product was a total about-turn, whittling down presidential powers, with an ambitious devolution, independent judiciary and electoral commission, the works.

But these were not the results of victorious democratic action. They were the product of a political truce by a frightened political class and the array of vested interests that control Kenyan politics. The primary cause was the 2008 post-election violence following the disputed December 2007 election with Mwai Kibaki and Raila Odinga as the main contenders, in which over 1,400 Kenyans were killed and 600,000 displaced.

The specific vehicle that delivered it was the quarrelsome government of national unity led by Kibaki and Raila, which struggled to divide the political spoils between the factions. The 2008 violence took Kenya to a dark place, and for once the political class seemed to see something the same way; that they would lose all the bread if they didn’t share it, and make concessions to the people - for the time being.

Which is why the 2010 constitution, in that sense, was not a shining democracy trophy, but a white flag offered during lost battle by the political class.

It was nearly a classic case of Solomon’s Wisdom in 1 Kings 3:16-28. To the forgetful, heathen, and secular, we quote from the good book:

Later, two women who were prostitutes came to the king (Solomon) and stood before him.

One woman said, “Please, my lord, this woman and I live in the same house; and I gave birth while she was in the house. Then on the third day after I gave birth, this woman also gave birth. We were together; there was no one else with us in the house, only the two of us were in the house.

“Then this woman’s son died in the night, because she lay on him. She got up in the middle of the night and took my son from beside me while your servant slept. She laid him at her breast, and laid her dead son at my breast. When I rose in the morning to nurse my son, I saw that he was dead; but when I looked at him closely in the morning, clearly it was not the son I had borne.”

But the other woman said, “No, the living son is mine, and the dead son is yours.”

The first said, “No, the dead son is yours, and the living son is mine”. So, they argued before the king.

Then the king said, “One says, ‘This is my son that is alive, and your son is dead’; while the other says, ‘Not so! Your son is dead, and my son is the living one.’”

So, the king said, “Bring me a sword”, and they brought a sword before the king.

The king said, “Divide the living boy in two; then give half to one, and half to the other.”

But the woman whose son was alive said to the king—because compassion for her son burned within her—”Please, my lord, give her the living boy; certainly, do not kill him!”

The other said, “It shall be neither mine nor yours; divide it.”

Then the king responded: “Give the first woman the living boy; do not kill him. She is his mother.”

Kenyans are the first woman. Politicians the second woman. In realpolitik Kenya, the second woman was never going to give up the baby forever. She came back to claim it.