WHAT A MEANINGFUL REFERENDUM PROCESS IN KENYA MUST ENTAIL

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t one time the Roman Empire stood regal and sturdy. It was obvious to all and sundry that nobody else had the mettle to challenge their military might and splendour. By the time Rome wreaked Armageddon on the great Greek and Macedonian realm at around 197 B.C, their reign had been consolidated as insurmountable. Their over-arching tentacles extended from Modern day Western Europe to the region half-conquered by Alexander the Great in Hydaspes currently known as Jhelum in the Punjab region, modern-day Pakistan. It was not always like this. Right at the most critical period of this consolidation there existed a smaller power yet so organized as to come within an inch of crumbling the mighty Rome to rubble. That mini-juggernaut was the much vaunted military tactical ingenuity of Hannibal Barça of Carthage. For African-pride junkies, Carthage was an ancient Kingdom headquartered in modern-day Tunisia. At the height of its power Carthage had dominion over an overseas territory of the whole Iberian Peninsula that domiciles modern day Spain and Portugal. Hannibal was Commander-in-Chief of the entire royal army. From childhood he had sworn to curtail the destiny of Rome by ‘Fire and Steel.’ When he came of age his plans started to crystallize into strategy. When his brother in law, Hasdrubal the fair – Ruler of Hispania was assassinated, he set off on a land odyssey with an end-game to conquer Roman troops and triumphantly stomp into the auspicious seat of the Roman Empire in Rome. He did well in this regard; marching from Hispania, into Gaul (France) and ultimately the Pyrenees. Impressively, he not only had a standing army of patriotic Carthaginians but also cobbled an alliance of the conquered nay friendly tribes, mercenaries – dogs of war and used guerrilla war-fare effectively. More pristine was his use of battle elephants that were virtually a battering ram against any opposition on land. They trampled opponents in the battle field but could also be used as a means of transport where horses could only have done so much. The greatest of his conquests was in the Battle of Cannae where he used the previously unheralded military strategy of envelopment to obliterate a massive force of the Roman army. For context, Cannae was a major food supply depot to the Roman military at the time also by and large most of Rome. Despite having only a mish-mash army of no more than 40,000 men he took to the field against a combined infantry and cavalry, the Roman war machine totaling to slightly over 100,000 men. Daunting as this challenge seemed, it was fickle to Hannibal who rather than having a block of soldiers in open warfare found a way to narrow the battling spaces by spacing out his echelons, creating a pseudo-corridor between their ranks then encirclement to massacre the enemy forces. This may go down as the costliest battle the Roman-empire ever had the misfortune to preside. A quarter of the then Roman ruling class was lost in a single day of carnage! A noble-rich contingent not confined to but inclusive of then incumbent Consul (Prime-Minister), his two predecessors, 80 of the existing 300 Senators of Rome, 500 Centurions their regiments notwithstanding and an elite fighting force of the numerical strength aforementioned lay slain by dusk! Most fortuitous was the escape of wounded Roman officer dubbed Scipio Africanus by the skin of his teeth at the twilight to fight another day. His father; Publius Cornelius Scipio, the commander of the elite squad of Centurions in battle that day was not so lucky. Hannibal immured himself into the pantheon of legendary war-lords for all time. Being one to fancy a souvenir, he cut off the Roman officials’ corpses fingers, removing their Golden cygnet rings of authority and took them by the crate on the voyage back to Carthage. He sought to use these as a bargaining chip to coax the King of the time to send reinforcements for his initiative to lead the final push to utterly extinguish Rome from the face of the earth. Meanwhile, Rome was marooned within the confines of her own city gates starving and waiting without any hope for their imminent fate. To the bewilderment of the entire civilized world at the time, Carthage now had Rome on its knees begging for mercy! If the Carthaginian brigade was to dig in for much longer, starvation would certainly have killed off all of Rome obviating any need for battle in any case. Then the unthinkable happened. Out of what can vaguely be categorized as apprehension - fear of the unknown, very poor counsel from the royal court or much more subtly as spite the king denied him the requisite reinforcements. He argued that should this wounded behemoth ever rise again, in typical vulpine fashion she would deal Carthage an iron upper-cut from which there would be no salvation. In one fell swoop Hannibal’s achievements were undermined and consequently his gains reversed. Hannibal had brought his forces to camp at the gates of Rome, to within an inch of conquest of this world super power only to be failed by his own king with glory at hand.

In the epilogue of this story Hannibal’s gains were severely regressed. He lost men to the harsh winters of temperate Europe in the Alps without replacement, the elephants out of hunger turned into a rogue and cruel liability trampling their erstwhile trusty masters, he was forced to disembowel his own men trying to force back reverence only to inspire revulsion, morale went flaccid, a startling retreat without defeat commenced and as is expected the mercenaries mutinied for monetary reasons. This tactless withdrawal was met with ceaseless onslaughts from hostile if not vendetta-spiked tribes they passed by on their perilous catabasis back home. Most ominous, a better armed naval fleet took advantage of this lacuna to open the city gates and sailed out commandeered by the single-mindedly determined Scipio Africanus to Carthage to deliver fire and fury into the heart of Carthaginian authority and avenge his father. The ensuing battle at Zama was nothing to write home about for the ‘Scourge of Roma.’ It was his first, most crushing and decisive defeat by a young man who copied Hannibal’s own military style. Scipio instead of mindless slaughter had the presence of heart to be cerebrally gracious in victory and offer Carthage the proverbial olive branch albeit, with a punitive peace treaty that included payment of annual tributes and a war indemnity to Rome. Also in the package was an honourable retirement for his inadvertent mentor and worthy competitor Hannibal. Both men died 20 years after that final battle. Pending the full decomposition of these titans’ remains; just 40 years after their deaths, the Third Punic War ended in the absolute decimation of Carthage, its burning to the ground and salting of its fields by the young, uncompromising but equally capable son of Africanus, Scipio Aemilianus. In the backdrop of this cataclysm, it begs the question: When in Hannibal’s hour of glory, his own King denied him troops to finish the job, how was the ultimate legacy of Carthage salvaged by this selfish move? [Feel free to label me subjective and emotional here!]

In spite of well-founded skepticism, I find myself compelled to exercise concomitance to well-worn sentiments doing rounds in the Kenyan political discourse, compliments of one of the well-heeled front runners for the presidential succession that, “Kenya suffers from an acridly acute shortage of ignoramuses.” In appreciation of that, I must reiterate a statement of empirical wisdom mentioned in a previous blog that, ‘no army in this world is strong enough to suppress an idea whose time has come - an invasion of armies can be resisted but an invasion of ideas cannot.’  This statement gained credence about 200 years ago when it was quipped by the famous playwright and poet Victor Marie Hugo but rings ever so true even today. I’m plunging headlong into the referendum that Kenya needs to hold before the next election. When we bequeathed upon ourselves this new, progressive constitution nearly 9 years ago, it was beyond a shadow of doubt that changes would have to be effected in due course to address the lacunae left in the implementation of the same. Just like all man-made edifices, this was not meant to be a perfect document but one in need of constant refinement to serve the best interest of those upon whom sovereignty rests, which is the populace of the Republic of Kenya. Contiguous to this, many loopholes have been noted, grey areas are teeming and toothless provisions find themselves an unfortunate tapestry of this contemplated as noble document. I am not here to criticize instead just prescribe areas that may require a little polishing just as any diamond that ever found its glimmer.

Yes, we need a reform of the constitution but how do we go about the entire process? Before March 9^th 2018, Kenya has been through a perilous wormhole where an unpopular elected executive sought to lord its will upon the majority of Kenya. It did not help matters that due to calculated strategy and the power of incumbency, the ruling coalition found itself with a healthy majority in parliament that muddled the entire equation further. Complements of this majority, plans were hatched to among other things dilute the ‘National Bible’ through uncalled-for legislative and political amendments. The Judiciary had been threatened with ‘re-visitation’ after their ruthless feat flexing their independence by annulling the Presidential win consequent to an incorrigibly flawed process. Why would one arm attempt to arm-twist the other in spite of the expected doctrine of separation of powers? Devolution too has been put on trial through under-funding so that the desperate Governors would run back to the national coffers seeking patronage and a favourable work-around in return for their support. The Handshake between Raila and Uhuru Kenyatta opened a portal through which good-will now flows universally but the window may be short. This is the window for beneficent constitutional reforms to bode well for our collective future destiny as a state.

So what Changes do we envisage to have?

·      Electoral Reform – To the best of my knowledge going forward Kenya has determined to use an ICT-based polling, election monitoring and management system. Hard-boiled and constitutionally enshrined provisions should be made to ensure nobody fiddles with this delicate process. In the past regulations and statutes have existed. But these are weak and unable to stand the taste of both our overly litigious contestations and inherent need for mischief. Also we need to style up the election watchdog body the Independent Electoral & Boundaries Commission. We have heard in the past horror stories regarding the use of exercise book pages as a tallying tool and admissible as Form 32. That is just quixotic and pales into the asinine. Liberalization should be exercised in the award of tenders by the IEBC to guarantee us even the sheer perception of transparency. Then we have the fiasco with the Election Result Server. Up to now, nearly 2 years after our bitterly contested elections we are yet to determine either where that Server is located or who has the authority to open it and analyze its logs for certainty on the matter! In a parallel universe this would have either saved us frivolous litigation, strengthened the case of the petitioners or eschew the cost of the second election. But as fellow Blogger @Owaahh summarizes it, “Of importance is aliveness, owada?” Does IEBC even have the authority to utterly ban the purveyors of hate speech, intimidation and violent posturing from marring the polls? We needn’t have an arbiter who is also an active player judging the contest. Lastly, integrity can only be enforced with constitutional torts. This saves us inconsistency and the cacophony of arbitrary pronouncement after midnight meetings merely to execute basic operational nuances.

·      Executive structure - The Presidency in Kenya has been made to be quite an attractive proposition. This same guy is the Head of State, Government, C-I-C of the Armed forces fully with the attractive ceremonial regalia. He has the authority to influence policy, spending and has veto powers over even the National Assembly on many issues. He controls our destiny figuratively in the words of Chinua Achebe holding both ‘the knife and the yam.’ He is basically a demigod among us. So, why wouldn’t there be a blood bath when one senses he is losing all this largesse more so to the results of a tainted process? Ugly scenes have been our staple over the years just merely to have the derrière of our kinsman kiss the hallowed seat of power! In this regard is it in good conscience to continue having all these transcendental powers resting with one man or should we have a Prime Minister to share the authority? People will argue about the lack of a Centralized figure-head of authority and all the additional offices and expenses to the exchequer but would you rather be a sitting duck vulnerable to slaughter, consistently chocked by tear-gas every Monday just because of an electoral process of which you are not even a key player? Who needs disrupted business schedules, mini-civil wars and nomadic migrations to perceived safe-zones just to escape civil strife? We are tired of bleeding for no solemn reason other than simply having our tribal elites lead! A Nation must consistently be deemed more important than an individual as the good Professor the late George Saitoti once quipped. Indeed, time is ripe to consider William Kamket’s proposal of having a ceremonial president serving a single 7 year term and concerning himself purely with the matters of state and its progress. The Premier’s office will entail the day to day running of the business that is government and the holder is ably assisted by two deputies.  Pretty much like a corporate entity with a Chairman and a capable CEO! Another tough ask I judge as timely is: Should we continue with the presidential system or break with tradition and now try the parliamentary system? With our cultural diversity, a parliamentary system will go a long way to pander to the need for inclusivity in this tribally concocted jurisdiction.

·      Separate Elections – The age old quandary strikes again. Isn’t it cheaper to hold all these elections in a single day? We must emancipate ourselves from the mental slavery that gives us the impression that cost is much more important than an informed, unrushed decision on governance. We need to give room to sincere popular participation in elections and make it less disruptive to their lives as embedded in our constitution.

·      Balancing Devolution vis-à-vis Over-representation – Devolution of government resource is good but how much representation is too much? Do we need all this tiers of leadership? What with MCAs we see traipsing around engaging in needless fist-fights and self-effacing scandals without getting the true value for their exaggerated numbers? Time has come to have fewer elected officials with constituencies being converted to the most basic unit of representation and having two representatives of opposite genders just for affirmative action. This lessens the burden on the already overtaxed polity.

·      Enhancing Devolution – County funds should forthwith be constitutionally provided for at 40% of the National budget and not fiddled with for political expedience.

·      Security Apparatus – We have all borne witness to the situation where members of the National Police Service act merely as a private militia for the executive. They also throw professionalism out of the window to become cooks, drivers and farm-hands for the elite. We have also seen a worrying trend where graduate officers have had their salaries reduced and dignity trampled. Also we find ourselves saddled with a service that is more inclined to brutality and bribery instead of service to the republic. We need a paradigm shift in their operation not an evolution to the grotesque in the colours of their uniform! We need these aberrations addressed constitutionally.

·      Recall Clause – We have a moribund clause in our constitution that furnishes us with the authority to recall our elected officials after two years if their performance is unsatisfactory. The threshold to effect this endeavour is so high that nobody could really find the time to fulfill all the obligations to make this a reality and still maintain their own sanity. Either we improve this provision or accept our fates as we have many a time and strike this one out. 

·      Article 10 – This is the one that behooves all state Officers to act in sympathy to our national values and strictly adhere to the sound principles of governance. We need stern, constitutionally ratified guidelines on the punitive measures to take on anyone who contravenes these provisions. Corruption should forever cease being the Kenyan way. Love for the neighbor is the way to go.

·      Cap on Reckless Borrowing – In our current dispensation we are stuck with a government keen to live beyond her means. Because attempts at reaching out to their conscientious soul have failed, we as a nation need to constitutionally tame this unnatural, insatiable, unrestrained and unsustainable appetite for high cost infrastructure projects with minuscule returns before we auction our kidneys to the Chinese!

·      Health care - the greatest joy of any professional is the prospect of one day being able to specialize and hence have a shot at self-determination of among other things his earnings, schedule and general destiny of his life. This is one of the rare instances I speak in antipathy to devolution but Healthcare should revert to the national government. In public discourse many friends who are medical practitioners complain of being nipped in the bud in terms of their career advancement. When posted to the devolved units they now find themselves adorned in a crown of thorns, becoming tied-down to the county and are grafted at the county’s hip for all eternity. They cannot take a break, sabbatical or study-leave for fear of victimization or reprehension by their bosses. This is callous, as how can any workman get better in his skill devoid of consistent career improvement, training and specialization? Forthwith, it should be cast in stone that doctors are a national resource and should henceforth be answerable to the national not county government.

The raft of potential changes is so wide it could potentially turn this blog into the New Supreme Law of the land! Jokes aside, time is ripe for a review of our constitution as there will never be a better time than today when the simmering tensions are out, hard-lines have been blurred and the juice of goodwill flows ever so free.