RESCUING NATIONALISM FROM VERNACULARISM: THE CONSTITUTIONAL AND POLITICAL OBLIGATION TO BE KENYAN BY CHIEF JUSTICE DR WILLY MUTUNGA
SPEECH MADE AT THE ‘PEOPLE’S CONFERENCE ON NATIONAL DIVERSITY, ETHNICITY AND RACE’, HOSTED BY THE NATIONAL COHESION AND INTEGRATION COMMISSION (NCIC) AT KICC NAIROBI, 12TH MARCH 2012.
The Prime Minister, Ministers, Ambassadors, Permanent Secretaries, Commissioners, Mr. Chairman, Citizens, friends, ladies and gentlemen:
I feel singularly privileged to speak at the ‘People’s Conference on National Diversity, Ethnicity and Race’. The timing of this conference is fortuitous as its substance is significant in Kenya’s continuing search for clarity around its identity. Coming just after the fourth anniversary of the National Accord and Reconciliation Agreement and in anticipation of a General Election, conversations such as these have a special significance in negotiating citizenship and nationhood.
Although I was asked to speak on the question of who is a Kenyan, I have expanded the focus of my remarks for reasons that will become apparent presently. And in doing so, let me start with an anecdote:
One of the biggest threats to nationhood has been the over-supply of the vernacular politician and vernacular Kenyan and a shortage of nationalists. Who is the vernacular politician or Kenyan? It is that person who views everything through the prism of the tribe. They equate national interest with ethnic interests. They are obsessed with ethnic hegemonic projects. They hold hollow but dangerous supremacist ideologies and, have invented false notions of ethnic entitlement, most of it anchored on exaggerated grievances, yet mostly fuelled by excessive greed. They revel in insults and derogatory remarks about other tribes and groups, as they descend into mindless orgies of mirth and self amusement. When they lose an argument, they rush to the defense of ethnic stereotype.
They are incapable of mobilizing across communities, and consider being referred to as the undisputed leader of the tribe as the ultimate political prize. They indeed treat it as a badge of honour. They excel in what divides us, and use their evil genius to create more divisions. They will never invest in the politics of issues, unless they are anthropological. When they are appointed to public office, their official trips to the countryside are regionally selective. They readily hide behind the community, when caught in a corrupt deal. They excel in rallying around the tongue; not the flag. They are sometimes very educated, professional and rich, but find satisfaction in spewing ethnic verbiage. They sometimes flaunt modern gadgetry as a mark of sophistication, but use these platforms to purvey sectarian drivel. Yet, both the vernacular politician and Kenyan thrive because they find fertile ground in the minds of Kenyans, who pretend to be powerless victims when caught imbibing this drivel. You cannot choose the days to be a nationalist and the days you will retreat to the comfort of ethnic cocoons. Being Kenyan is a full-time commitment. This country needs citizens who are Kenyans all the time; not those who are vernacular Kenyans most of the time. Just in case you forgot, Chapter Six is partly intended to eliminate this breed.
In Chapter Three, the Constitution is clear on who is a Kenyan: Anyone who is born in Kenya, or born of a Kenyan, is a citizen. Anyone who marries a Kenyan or applies for citizenship after living in the country for a certain period can become a citizen. That citizenship is universal and indivisible. But citizenship is not just a juridical concept; it is a sociological and political reality.
For the great majority, Kenya is the land of their birth. It is their home. This is where their lives are, and it is where they will be buried. They are Kenyans because they have no other nationality. Their idea of being Kenyan defines citizenship not just for themselves, but also for all others who seek to voluntarily join this nation.
For almost 50 years, Kenya has struggled to carve itself out as a distinct entity in the community of nations on the basis of its geography, attractions, potential and complex cultural heritage. It is the nation defined by peasants who died by the bullet clutching soil in their clenched fists as it is by those who were bewitched by its splendour and opportunities, and poured their energies into making it their home. It is a place of possibility for the human spirit to thrive in freedom, justice and dignity; a place to nurture hopes and dreams that could be bequeathed to future generations.
Yet, the idea of Kenya is also problematic. At independence, the responsibility of nurturing the nation’s hopes and aspirations passed to the new leadership. After all, history was already replete with examples of nations that had been forged on the basis of brute force and strong personalities alone. The results, in our case, are a mixed bag.
In spite of the many contradictions emanating from our competing hopes and dreams, a national character has emerged over time that is celebrated in the country’s remarkable successes across sport, innovation, academia, diplomacy, industry and creativity. No one has any problems recognising and embracing this Kenya – the world beater on the athletics track, the home of creative artists, industrious people and probing intellectuals. Kenya has a soul. Perhaps it also has a skeleton. The flesh and other details require work.
Diversity has been a painful resource for most of African countries. It has been the source - or even more accurately - the excuse for political conflict and instability. And, more recently, diversity has formed the basis for an emergent culture war on gender, sexuality, and reproductive health among others. However, I refuse to believe that diversity, or ‘differentness’, in and itself, is the cause of these conflicts. To a very large extent, it is the instrumentalisation of difference by the political class that has plunged our country into chaos, thereby undermining the emergence of a professional state of the Weberian variety. In our diversity, the political class has found and minted a negative currency for politics. The Kenyan political elite has achieved a remarkable feat in successfully conflating class and ethnicity thus eliminating traditional political ideology from guiding our political contests. In fact, they have succeeded in subordinating class to ethnic considerations in political discourse, which makes two Kenyans living in the slums or in the upmarket neighbourhoods, opt for different political choices. Our ethnic divisions have made us no respecter of our material conditions when making political choices. Instead we seem to derive a lot more useless value and satisfaction in ethnic esteem contests!
But this should not entirely surprise us. Our country, like most of African countries, was founded on divisions. The colonial state did not disguise its biases to serve a tiny elite and exclude the majority of the population. Kenya was founded on division; thanks to Lord Fredrick Lugard’s philosophy of Dual Mandate. Divide and rule has characterised the capture, use and abuse of state power. Ethnic groups, races, and other identity collectives have been brutalised or rewarded simply because of who they are. Ethnic profiling and stereotyping has become both a national fulltime and pastime. The discriminatory tendencies of the state inherited from the colonial period and perfected after independence, engineered severe shortages of public goods that severely undermined the nationalism project and negated the very foundation of the Kenyan nation.
This has institutionalised grievance, which exploded in our faces in 2007/2008. As we approach another election, I feel that the space for re-embarking on the nation-building project is reducing, and I find it worrying that we seem not to have learnt from the past, a least going by the utterances I hear, and the conduct I observe.
On August 27, 2010, we decided that we want to be a nation when we promulgated a new constitution. Sometimes, discussions on the Constitution appear abstract, thus obscuring the underlying truth (or is it assumption?) which is that Kenyans have considered the idea and decided that they want to be together.
The Constitution, in its preamble, celebrates the pride of Kenya’s ‘ethnic, cultural and religious diversity’, and proclaims our ‘determination to live in peace and unity as one indivisible sovereign nation’. The founding values and principles articulated in Article 10 highlight inclusiveness, non-discrimination, equity, and protection of the marginalised. The Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation. Equality, diversity, is sprinkled in the entire document, including Chapter Thirteen on the public service. The constitutional commitment to equity and fairness is further reinforced in the devolved system of government that is in Chapter Eleven.
But being together is not the same as being united. There is nothing preordained and natural about Kenyans being together. It is a deliberate decision on the part of the citizenry, a choice we have freely made. We have signed a social contract among ourselves, and with our leadership now and in the future. That is why in the preamble we are exercising our sovereign and inalienable right to determine the form of governance in our country and adopt and enact the constitution to ourselves and to future generations. The boundaries of this nation, and the communities within it, will only remain if we respect the terms of that social contract.
Contracts are supposed to be performed. They contain rights and obligations. We have a duty as Kenyans to obey the law and to uphold the Constitution. In return, the state has a duty to protect life and property as well as to offer services.
Self determination and breakaway tendencies are part of human history not so much because those who lead them have a reflexive appetite for war and fragmentation, but because there is a failure to honour the social contract, or a political practice characterised by marginalisation, or lack of respect for the other, and frustration of the aspirations for some.
This country must not delude itself that it is inured from these afflictions. We must be careful. We must be sensitive. We must daily invest in the nation building project. In our conduct, our conversations, and decisions, we must demonstrate an interest in the survival and development of Kenya as a nation state. In this respect, every individual, every leader, every voter has a duty, a responsibility and an obligation.
Since national identity is inclusive, it has got to be negotiated as broadly as possible. It cannot be the exclusive province of a few. Citizenship is the great political equalizer that gives like voice to those at the centre as at the periphery. Because of the temptations to disengage from the centre, building a nation requires not just the consent, but also the active participation of those at the periphery. At the core of the nation must be rationale as well as guarantees of protection for those at the periphery to feel a part of the whole than if they were alone.
When we refer to certain regions as economically unviable, it is important to realize that this phraseology is loaded with stigma and discrimination. There is no region that is unviable. The world is replete with examples of deserts that have transformed into economic power houses – Israel, Dubai, Singapore and many more. Any leader who regards and refers to any region in this country as unviable is questioning the very viability of his or her own leadership. It merely demonstrates a remarkable poverty of ideas; a paucity of imagination; and a deficit of ambition. The language of high potential and low potential is a myth -- it is manifestly discriminatory, and has been used historically as a fig leaf behind which to hide to share state resources in an inequitable manner. These are the tendencies that undermine notions of citizenship. Besides, the constitution decrees devolution and equitable distribution of resources.
In numerous instances, the deliberate or unintended sabotage of certain hopes and dreams has alienated significant portions of the population from the idea of Kenya as a common good, a place of freedom, justice, dignity, self-actualisation and opportunity.
We cannot build a nation on the foundation of rhetoric alone. We must express our intention, but also follow it with action. We must demonstrate that something has changed. We must crack the constitutional whip to ensure that political parties that intend to obtain registration and participate in elections do not organise around our divisions – ethnic, regional, ability, or gender. We must design our electoral processes so that they embrace minorities.
Our citizenship must be universal, where every individual enjoys the civic rights granted by the Constitution even as he or she retains his or her other identities, including the ethnic one. We must ensure that those who attempt to trample on the rights of citizens do not find comfort in public office.
We must also fully discharge our obligations to each other as individuals who are part of this polity. These obligations start from the basics of requirements: respect for each other as individuals, as well as respect for communities and other identity groups. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in this country by making derogatory remarks as has been all too evident in our country’s history. It is only the weak minded, people incapable of comprehending the origins of the modern state, its philosophy, its instruments and its edicts that resort to such approaches in managing expressing disagreement. Thus when I hear leaders warning whole communities that Kenya has its owners, I wonder whether such leaders appreciate the unconstitutionality and illegality of such comments.
Just as a fish that grows in a pond may consider itself the king of the sea until it is introduced into the ocean, we too must also awaken to the reality that our ethnic and sectarian interests may only matter if we are disconnected from the rest of the world. Unless we all recognise that Kenya is a confederation of cultures, languages and interests, we shall never be able to cultivate the sensitivity and respect for one another necessary to hold us together. We might never live up to true greatness as a member of the community of nations because we overstayed our welcome in the pond when the ocean beckoned.
The things that are seen to divide us – ethnicity, religion, race, class, clan, region, occupation, sexual identity, generation, disability – are also the raw materials needed to create the mosaic of one nation.
I also want to caution that pejorative commentaries, sometimes excessive even in comedy, should be purged from our national discourse. Negative ethnic profiling is sometimes aided by excessive parody. What was essentially parody sediments into ‘truth’ and the rest of us begin to make decisions in real life based on the emerging caricatures. I enjoy comedy, and I would be the last person to suggest that anybody should censor it, but let us give a thought to instances when well meaning activity may end up hurting the broader public interest. Comedy should complete the cycle by celebrating our idiosyncrasies, and deliberately banish any notions of ethnic hierarchy that may unwittingly be transmitted.
In our continuing search for identity, we need to settle the question of the philosophy that defines our nationhood not just as Kenyans, but also as Africans. We need to search and find that symbol of nationhood that will inspire us to create a just, peaceful society we all desire to live in.
The creation of the National Cohesion and Integration Commission in the aftermath of the sad events following the 2007 elections is an attempt to begin this conversation. It must seize the moment to align our daily endeavours towards nurturing a truly nationalistic culture. Beyond the commission, all Kenyans have a duty to construct the nation’s identity by embracing diversity, tolerance and respect for one another. Press coverage of the identity problem treats it as a problem only in the public sector. I think that this problem is probably more acute in the private sector. NCIC owes this country an audit on ethnic concentration in terms of employment, contracts, and promotion. We must cultivate a culture of tolerance draw from the spirit of the Constitution; the edicts across religions. NCIC needs to conduct attitudinal surveys so that we can improve on our tolerance levels and eliminate trust deficits.
In the Judiciary, we have acknowledged the challenges we have faced in the past in this regard. We shall partner with the NCIC within the context of the National Council for the Administration of Justice (NCAJ) to help NCIC deliver on its statutory mandate particularly in the context of the coming elections.
The Judiciary itself faces these challenges of diversity. Only recently in a station not too far from here, three of our judges stared the problem in the eye when the paralegal staff from one community boycotted a luncheon the judges had hosted because their colleagues had accused them of speaking in their local dialect while at work!
In conclusion, I know that while identity can be a puerile matter it can still be quite rewarding to some people. I am privileged to come from a profession, the law, that long recognized equality of human beings long before other disciplines. Physiologists now tell us that you cannot identify people’s identities through any other body’s organs such as the heart, brain etc. The Human Genome Project showed that we are 99.9 per cent the same. That, of the nearly 30,000 genes in the human body, the diversity within races and tribes is much higher than between them. It is still amazing that despite this evidence from science, a perversion of difference capture a large segment of our intelligent minds. Further, sameness is no guarantor of stability and harmony. Somalis and Koreans are some of the most homogenous people on every front: looks, culture, language, religion – yet we all know that these countries have been at war for many years. It is not enough to just look alike, or speak the same language. And a corollary to the right that we are all equal is the fact that none of us is better than the other on account of ethnicity or other identities. Nobody should be punished or rewarded on the basis of identity.
Finally, ladies and gentlemen, I hope that this conference and the deliberations that emanate from it awaken all citizens to the great responsibility each one of us bears in fashioning, perfecting and sustaining the Kenyan nation. As Kenyans we should daily ponder what brand of Kenyans we are. Are you a vernacular Kenya or are you a nationalistic and patriotic Kenyan?
Chief Justice and President of the Supreme Court
Republic of Kenya
