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The
situation in Kenya and the struggle for a democratic Constitution
in Zimbabwe
Tapera
Kapuya
January 22, 2008
Since its December 27th
General Election, Kenya has been experiencing a wave of political
conflicts that should serve as a lesson to Zimbabwe-s pro-democracy
movement, as these problems are rooted in the same democratic deficit.
Much of the media coverage
on Kenya seems to have been consumed by a focus on the ensuing violence
with very marginal efforts to investigate issues at the centre of
this conflict: absence of political democratic institutions and
the shortfalls of 'executive- fundamentalism. With Zimbabwe
facing a potential election in March, a look into the Kenyan scenario
would be helpful in avoiding a worse repeat. In order to build agency,
around a proper constitutional reform process, whose outcome will
insulate Zimbabwe from the problems those in Kenya are going through
and those experienced in past elections.
Since the Kenyan election,
over a thousand people have since lost their lives and 250 000 more
have been displaced. As in most post-colonial conflicts, much of
these tensions have taken an ugly ethno-tribal character.
According to
observers, the elections themselves were held in a manner that can
be deemed 'free and fair-. In the run-up to the vote,
all political parties had relative space to organize and campaign.
Kenya has a growing free media, and unlike Zimbabwe does not have
such notorious legislations as the Public
Order Act or the Access
to Information Act. The Election Day itself was rather peaceful.
The opposition, Orange
Democratic Movement, won majority of the parliamentary seats. The
ruling party would be announced as having won the Presidential vote.
Problems were then reported in the tallying of the vote, throwing
the Mwai Kibaki-s victory into dispute. The Chairperson of
the Kenya Electoral Commission has since acknowledged that there
was manipulation of the vote.
Independent observers
have suggested that the Election was too close. The US Ambassador
to Kenya, Michael Rannesberger, is quoted saying whoever won the
Election, did so by a margin between 23 000 to 100 000 votes. And
that is where part of the problem and why building Constitutional
frameworks that harness the spirit of nation building lie.
Kenya like Zimbabwe,
has its Lancaster House Constitution, drawn in 1963 as a settlement
document when the British colonists were withdrawing from the territory
to allow for Kenya-s independence. Consequently, this Constitution,
now with its fair share of amendments, has not abhorred well for
a transformational state, therefore allowing for dictatorship tendencies
to set in. The Daniel Moi regime, would master repression under
the shoulder of Constitutional righteousness.
As it relates to Elections,
state administration and governance, Kenya has a winner-takes-all/loser-leaves-all
electoral system. This system is what we have in Zimbabwe. What
this means is that, even if one wins an election by one vote, the
opinions of the section of the voters who would have lost will not
find political representation or expression. It is a system that
excludes 'losers- and, as we are learning from Kenya,
a base for fuelling other deep seated tensions and questions to
do with the legitimacy of the winner as a representative of all
interest groups, if voting patterns are also put into consideration.
Its Presidential parliamentary
system places more power in the executive, including power to legislate.
The executive has a monopoly over national resource distribution,
with the legislature being reduced to a powerless club of sessional
critics or patronage driven loyalists. With a Constitution that
bestows enormous powers on the executive and because there are no
constitutional provisions to ensure equitable distribution of the
country-s resources, perceived loss of the vote carries a
heavy meaning for those who lose. In regions and amongst groups
perceived to be less prioritized by the victors, this arrangement
fuels anger. It means another five years of being isolated, another
five years of exclusion, another five years of poverty.
The disproportionate
powers the executive have, including that of legislating, compromises
the others arms of government. The legislature and judiciary become
overly dependent on the executive, undermining their role to provide
for checks and balances. Executive accountability erodes. Corruption
and its attendant defense systems set in: with regionalism and identity
cleavages taking centre stage in national determination. Regions
or communities without a 'representative- in power suffer.
Democratic transformation
in Kenya, as in Zimbabwe, gained its momentum in the demands for
Constitutional reform, with Kibaki defeating Moi on the banner of
'a people driven Constitution-. Kenyans are yet to see
it, two Presidential terms down the line. Most of those in civil
society would be absorbed into the luxurious benefits of the State
and soon forget the principled demands of institutionalizing democracy,
and facilitating the writing down by the people of a framework under
which they want to be governed - a Constitution. The disasters
are what we are seeing today: those who feel excluded and watching
their vote becoming meaningless are resorting to 'all means
necessary- to reclaim the vote from the gutters. The death
toll keeps rising as neighbor turns against neighbor, and identity
replaces value in deciding who is a friend or foe.
The primacy
of identity politics becomes breeding ground for the most deprived
tendencies. It fosters an identity based nationalism which regresses
democratic values necessary for nation building. As we have seen
in Kenya, the electoral loss/victory soon takes the form of one
identity grouping having defeated the other and the nation dividing
along ethno-tribal lines. Ethnic identity is now equated with political
identity.
Is Zimbabwe
the next Kenya?
A similar threat confronts Zimbabwe, risking the negation of genuine
national debate on democratic transformation.Given
our history, and the need to foster a common identity in our diversity,
a political system and Constitutional framework which allows for
this is critical. The incumbent regime has set the country back
into the socio-psychology of identity in determining who can participate
or not in national discourse. Our white population has been effectively
wiped out from being Zimbabwean. Even in the most liberal of opposition
spaces, they are regarded with suspicion and are politely censored
from making public representation. Zimbabweans of Indian descend
or Mixed-race are have been purged from public political participation.
Amongst the black population, it has begun to matter whether one
is Zezuru, Karanga or Ndebele. As if this is not enough, gender,
even within these clusters of divisions, has been so entrenched
to qualify exclusion, with our women compatriots having to endure
structural abuse to assert the mere fact that they to are citizens.
Human character is secondary
in the estimation of man and women. These identities have also informed
people-s perceptions of who is excluded or included in the
economic, social or political benefit - be they in the patronage
of the State, or in civil society and opposition or business.
The violence that is
manifest in Kenya, though based on identity, is reflective of failures
in the country-s Constitution and institutions to be responsive
to the crises of nation building. Many Kenyans have doubts about
the validity of country-s Constitution, especially the process
under which it was written. This is of relevance to Zimbabwe, where
sadly as in the Kenyan case history could be vengefully repeating
itself.
The MDC has consistently
argued that a new Constitution must be put in place before the elections.
Yet it seems to be doing everything to confirm its participation
in the electoral process before this key demand has been met. Gabriel
Chaibva, spokesperson of one faction of the MDC, in an interview
with VOA is categorical about participating in the March elections.
Nelson Chamisa, the spokesperson for the other faction, suggested
the same in his widely condemned rally speech where he threatens
Kenyan style protests should Mugabe do what he knows best: manipulate
the vote.
Despite this
grandstanding and pontification about a new Constitution, the MDC
- in itself a product of the Constitutional movement -
does not seem to place value in the importance of a democratic,
public participatory process of Constitution making. The Constitution
it is fighting for in the talks is a product of 'four wise
men-, determining the permanent fate of 13million of their
fellow citizens! The Constitution they are proposing has not been
seen or shared by Zimbabweans. Speaking during a visit to the US
end last year, leader of one of the factions, Morgan Tsvangirai
is quoted in an interview suggesting that 'we have graduated
from process-, in deviation from the principles. Welshman
Ncube in his speech to Parliament in support of the widely condemned
18th Constitutional
Amendment to the Constitution of Zimbabwe went to depth to explain
that the principles of an 'open, transparent and participatory
manner- in Constitution making were not a 'fundamentalist
decree-.
On the 3rd of January,
Morgan Tsvangirai published an opinion piece suggesting that a Transitional
Constitution had been finalized, with the sticking point being that
of implementation. The nation or even members of the MDC are yet
to see it. Our experience has been a bitter one: reforms made in
the dark, excluding national dialogue are partly the reason why
we are where we are today: a reason for us to be very afraid of
the Kenyan 'demons- visitation or better still of being
'kibakised-.
But what is
even more frightening, if it is to be believed, is the revelation
by Nathaniel Manheru a columnist for government controlled Herald
who wrote in last Saturday-s edition that the so called 'transition-
constitution agreed by Zanu PF and the MDC is nothing more than
the 2000 government draft that, lost the referenda.
The South African Model
Model countries such as South Africa do offer learning curves on
national reconstruction. Emerging from its brutal past, as the rest
of post-colonial Africa, South Africa underwent a process of Constitutional
building that pitched public participation at the centre of Constitutional
development. Public opinion and debate would take place, with its
Constitutional Assembly, civil society and political parties opening
the nation to dialogue with itself. What resulted was amongst other
things, an electoral and political system that is modestly inclusive,
guaranteeing proportional representation, and allowing all views
brought to an electoral contest and receiving electoral support,
to find a measure of expression.
Greater devolution of
power in provinces has and local municipalities have created a system
of greater accountability and service delivery. There is freedom
of electoral contest and democratic expression. The result has been
limited violent contestation of election results and a harmonious
existence of political formations and civic groups despite their
competing ideologies or perspectives. Those who lose an election
will still salvage their proportional representation of the vote.
The National
Constitutional Assembly (NCA)has advocated for a similar system
of Constitution making based primarily on the principles of 'public
participation, openness and transparency-. Its 2001 draft
addresses some of the key issues of proportional representation
and institutions that safe-guard democracy: Electoral Commission,
Human Right Commission, Gender Commission etc. The draft also argues
for a strong legislature and judiciary and the effective separation
of powers between the varying arms of the State. Parliament, elected
through a mixed system of constituency based and party-proportional
based representation would elect the leader of government who would
account to it. This system was drawn out of the views gathered from
ordinary Zimbabweans, by both the NCA and the Constitutional Commission.
The government draft presented to the referendum in 2000 ignored
all these views, and was wisely rejected. In arguing that elections
should be deferred until such a time as there is a Constitutional
and electoral framework, it aims to pre-empt the possibility of
national degeneration.
The Kenyan scenario points
to the things we can avoid and toward the importance of working
on developing and putting in place structural systems that ensures
barbarism and exclusion are not part of our politics and national
life. The democracy movement must also learn that short-cuts to
freedom lead to spurious regimes and the entrenchment of anti-democratic
practices. The MDC, carrying with it the mantle of the nation-s
hope for change, must rethink its options. The current opportunism
and intellectual laziness that is becoming so pervasive should be
stopped and give way to the principled call for a just and free
nation.
Tapera Kapuya
is with the National Constitutional Assembly. He writes in his personal
capacity. He can be reached on kapuyat@gmail.com
Please credit www.kubatana.net if you make use of material from this website.
This work is licensed under a Creative Commons License unless stated otherwise.
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