The Constitutional Democratic Process Is Like Making Sausage

By Dorcas Sarkozy

Let me get this elemental truism out of the way.

A constitution like any other document is a “living” document i.e. an “evergreen” or “dynamic” document. The Constitution of Kenya is a formalized set of rules and regulations that is subject to edits and amendments to reflect the mood AND reality of the governed – including minorities.

To repeat a point I have previously made, African Americans (slaves) were considered 3/5ths of a person during the 1787 Constitutional Convention in Philadelphia, Pennsylvania; this for determining legislative representation i.e. voting. Eventually, the Voting Rights Act, signed into law by President Lyndon Johnson on August 6, 1965 gave them their “full person’s” right to vote under the 15th Amendment (1870) of the Constitution.

Note: The 15th Amendment prohibits denying a citizen the right to vote “on the basis of race, color, or previous condition of servitude”.

The foregoing should give those wringing their hands over Raila’s decision to withdraw from the October 26th re-election or posing the presumptuous question “Where does it say in the Constitution that Raila ‘has’ to be President?” some pause.

In the ensuing public discourse since RAO announced that he was withdrawing from the Oct. 26th re-election, the one thing that is readily apparent is the mistaken belief that the constitution (or any document for that matter) is “static”.

It is not.

It has amendments oftentimes for minor things such as typos and simple human error and major things such as allowing a previously-disenfranchised group their right to vote. Some of the observations in the public domain, on print AND social media, are part and parcel of the document’s dynamism.

What has failed Kenyans is their fidelity to the spirit AND the text of their legal documents and THAT has been at the core of Raila’s quest: Free, fair and transparent democratic space.

Back to my go-to example America:

The current (2017) seating of SCOTUS (Supreme Court of the US) is set to hear at least two cases involving the voting rights of minorities and this doesn’t even include the cases still making their way through the various state and lower federal court systems. One of the cases, on gerrymandering – VIETH et al. v. JUBELIRER – started in 2004.

My point?

Raila’s decision to (a) petition the IEBC announcement that awarded the August 8th presidential race to Uhuru Kenyatta and (b) boycott the SCOK-mandated re-election scheduled for October 26th is part of a lengthy oftentimes frustrating molasses-like pace of the arc of the moral universe and wheels of justice turning – towards justice.

There are some Kenyans, mostly in the Central/Mt. Kenya region, who believe that Raila and his supporters “are asking for too much” or “are never satisfied” – presumably with where Kenya is re: free, fair and transparent elections. I even read an offensive and arrogant post that wondered “where in the Constitution is it stated that Raila ‘must’ be president”. This is the very mindset I was referring to in yesterday’s post (10/09) that discussed the fear some Kenyans (and white Americans) have of losing power and privilege to others outside their respective group. Somehow the prominent public figure who authored the offending post did not understand the import of his comment OR did not care what anyone thought about the privilege and sense of entitlement the comment embodied.

Again for some perspective regarding the fight for a level playing field for ALL Kenyans, African-Americans are STILL fighting for their civil rights including fair treatment by law enforcement AND voting rights – in 2017 and fifty-two years after attainment of their civil rights in 1965: Kenya got her independence in 1963 and finally ridded herself of the despotic and authoritarian mentor of the current president Daniel Arap Moi, in 2002!

The claim that RAO is “asking for too much” or “is never satisfied”, much like the claim by segregationists George Wallace, Bull Conner, Robert Byrd, William Fulbright et al that MLK, Malcolm X, Cesar Chavez and other civil rights’ activists were “communist ingrates”, is deliberately designed to obfuscate the core issue the activists were fighting for, indeed lost their lives for: RAO circa 2017 and African-Americans circa 1960 & 2017 simply want/ed fair treatment by the law – criminal, electoral, civil/human rights etc.

Americans (and the world) are once again witnessing the misrepresentation or clouding of an issue that challenges the legitimacy and impartiality of the status quo even as it exposes its hypocrisy – this of a Jubilant favorite Donald Trump. The current POTUS and his acolytes have incorrectly, inaccurately and diabolically hijacked the anti-police brutality and anti-discrimination message of Colin Kaepernick and other African-American athletes (in the NFL).

The US Constitution was created on Sept. 1787. It was ratified on June 1788 and made effective on March 1789. Of the 33 amendments proposed by the US Congress, twenty-seven have been ratified by the requisite number of states and are part of the Constitution.

Kenya’s Constitution is seven years old having been promulgated on 27 August 2010 – 7 years old!

Regarding formal/legal documents, boyfriend is working on a protocol for validating a packaging configuration for a device they are developing. He has gone through four (4) iterations of the package – changing the foam inserts and boxes, both 2x, serially and in his opinion, he is not done! The test protocol is a peer-reviewed AND approved legal document subject to FDA review and subpoena by law enforcement.

I am left wondering how Jubilants and President Uhuru Kenyatta think formal changes to formal documents happen; that they happen in a vacuum. Even more important, mewonders whether they know or consider WHY formal documents (Constitution) are subject to being amended.

My hunch is that they, UMK and Jubilants, like white Americans are so used to driving, make that manipulating the (national) discourse and any outcome that they rarely consider the “how” and “why” of the process. The former (UMK), for sure rarely does, having been weaned on a diet of roadside pronouncements and presidential diktats.

To paraphrase CJ Maraga’s initial ruling (on Sept , 2017), constitutional and electoral democracy is a process, oftentimes cumbersome and frustrating.

It is not an event and along the way, decisions are made that please AND displease either side.


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