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While opposing the 2010 constitution, political scientist Mutahi Ngunyi elaborated how the new constitution would eventually lead to a tyranny of Kenya’s two dominant communities at the expense of others. Read: 

My name is Mutahi Ngunyi, citizen number 4855678. I am previously from the Gema Nation, before becoming a Kenyan. And my vote is a big fat No.

I am not ambiguous; I am not thinking about it. It is a No. If I can be allowed, I want to vote tomorrow. No point waiting for August 4. I want to reject the draft and move on. The lawyers have interpreted it until they are hoarse.

Now they are exchanging ignorance on television over the “letter” of the law. People in the streets have read it.

In fact, my grandmother will tell me something like this: You must read Section 105(1)(a) with Section 99(1)(c)(ii) in mind. In sum, this is the most read constitution in the history of African politics.

Yet, in reading it, we miss the point. Our focus is on the “letter” of the law; not the “spirit” of the law. Its letter is intact, even logical.

But its spirit is dangerous and deceitful. No. It is mischievous, recklessly playful and grossly naive! I will explain.

A constitution is not a legal document. It never was. It is an instrument of politics. It defines “… who gets what, when and how”. In other words, it is about getting. It is a shopping list. Everything else is detail.

And those telling us to pass it for the love of Kenya are lying. Kenya is me, my woman and my children. Period.

The question for me, therefore, is this: Of what use to my children is this constitution? Does it make them richer or poorer? Does it guarantee them peace or is it a blueprint for the coming war?

Come August 20 who will be the winners if it passes and who will be the losers? Does it replace one group of “mafuta mingi” with another?

The “letter” of the law gives us a rosy picture. But the “spirit” of the draft scares the wits out of me. Consider why?

Those voting Yes are doing so to buy peace. At least this is true of the poor. But they are deluded by the “letter” of this law.

For starters, we fought because of the dominance of the Gema Nation. This is a fact; an historical truth. But was it addressed by this draft? Zero.

In fact the draft favours the dominant over the dominated. Academically, anybody can marshal 50-plus-one per cent to become president. In reality, this is political nonsense. The presidency will be the preserve of the dominant “nations”.

The dominated “others” will have to scavenge and nibble around the counties. But why do I say so? The Rift Valley vote is 2.9 million; the Kikuyu vote is 2.7 million. In fact, the Luhya and Luo vote combined does not equal the Rift Valley vote.

If this is true, the presidency will be determined by two communities only. This is our tribal reality; our untidy path to future problems if we pass the draft. And to Gema and Kamatusa dominance, I say No.

But there is another point regarding peace. The “spirit” of this draft is grossly naive. It antagonises all with a childish naivety. Let me explain.

It is antagonistic to the Armed Forces, the Provincial Administration, the Judiciary, the Attorney-General and the land barons.

But why is this naive in a childish way? To pass, this draft will need the goodwill of these institutions. And, in the absence of dialogue, these players have gone underground. This is why there is a thread that runs through the sabotage to the review.

The illegal insertion in the constitution was deliberate. It was blamed on the Attorney-General and no arrests have been made. But there is no difference between this “insertion” and the ruling on the Kadhis’ courts. In fact, the judges are currently on “revolt”.

If I made an application to stop the referendum today, I believe I can win. They have fired MPs and thrown the review into disarray.

And all this is because they are aggrieved and no one is listening. This is why we must ask a question over the Attorney-General’s appeal on the Kadhis’ courts.

He wants a determination before August 4 from the Court of Appeal. If this court declares the Kadhis’ courts illegal, they will be buried forever.

And if the Attorney-General is aggrieved and the judges are aggrieved, chances are that the Court of Appeal will declare the Kadhis’ courts illegal. If this happens, the matter will be sealed in toto. No appeal; no recourse, no reverse. Is this the intention?

What about the provincial administration? Any election in this country depends on them. Is it possible to trust them to carry out a referendum that will disband them?

This is naive to the extreme. Besides, the IIEC is a “greenhorn” commission. No experience, no history, nothing.

If the provincial administration could fix the age-old Kivuitu Commission, what will an aggrieved administration do to a “greenhorn” commission like the IIEC? I am worried.

If you combine this with an angry Armed Forces over unionisation, we are courting disaster. I will not expose my woman and my children to this. It is clumsy, thoughtless and reckless. I will not experiment.

My last submission is personal. My No vote is a protest vote. The owners of this constitution have blood in their hands.

The principals have told us that this is a “government project”. But I do not remember them washing the blood of the 1,300 innocent Kenyans who died in 2008 from their hands.

Is it possible for “bloody” hands to write and support a constitution for our children?

We cannot pretend that you can oversee the shedding of blood one day and the writing of a constitution the next day. No way.

The article was first published on Daily Nation 30th May 2010

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