Eric Ng’eno: Constitution’s decolonising agenda

How is such a systemic moral incoherence and apparent ethical fragmentation possible? How do we, as a political community, manage to subsist, with relative stability under these obviously untenable conditions?

To answer this question, we must keep in mind that at its founding, Kenya was a state of vicious war between the state and the people, because at the advent of colonial tyranny, the state was constituted and dedicated to the sole purpose of repressing, expropriating and enslaving Kenya Africans. The majority, therefore, negotiated their existence within a system designed to infringe all of their interests, and the scope for legitimate exercise of agency was practically non-existent for them.

Africans, therefore, found themselves with horrible choices, as a matter of the reflexive imperative to survive. The first was, expectedly, to defect from the community of native aspirations, and by affiliating themselves with diverse colonial enterprises, especially the missions and the administration, acquire a measure of the rights, powers, privileges and immunities available to the colonial community.

The other option was to commit to a course of action which entailed subversion, revolt and agitation with the aim of restoring African sovereignty and reclaiming native lands. Every community that came into sustained contact with colonialism experienced this socio-political duality, and the resultant schism continues to shape social discourse and political agendas to date.

Incidentally, the reason why our ‘hustlers' versus ‘dynasties' dichotomy defied easy definition is because constitutive understandings are intensely complicated by nuances accruing from this earlier schism between collaborators and resisters, the mission versus native tradition, the pampered, fawning colonial subalterns and the immiserated but intransigent tribesmen.

In any event, notwithstanding its formal and final cause as a vicious instrument of atrocious plunder and brutal oppression, the state existed as an undeniable overarching reality. The emergence of democratic, representative platforms for advancing African interests, be it in the form of African Native Councils or the Legislative Council framework propelled the champions of native aspirations into intimate proximity with state power. Democracy thus became a very complicated phenomenon in Kenya, at once facilitating the emergence of genuine champions of the people and channelling popular aspirations, but also serving as a cooptation mechanism to absorb them into the state apparatus.

This is how our most iconic freedom fighters also served as the British crown's ministers as a necessary component of the freedom struggle. It is also illustrative of what is lost in the transition of democratically elected advocates of the people into elites embedded in the innermost chambers of a predatory state.

It must be assumed that the predacious constitutive impulses of the colonial state subsisted by the operation of the law of inertia and discharge themselves by consistent decantation into the operational psychologies and quotidian culture of the functionaries and agencies of government.

Our democracy, then, continues to contort itself to straddle the contradictory imperatives of transmitting upwards the subversive energy of the freedom-seeking majority, and projecting downwards the tyrannical potency of a stable, coherent, and essentially colonial state.

Politics, therefore, entails proficient code switching , with elites waxing serikali at the capital on working days, pronouncing formal edicts and insistently defending the state's legitimate authority, only to immerse themselves in the rhythm of the grassroots, vigorously dancing on makeshift podiums during weekends, balefully shaking fists at the enemies of the people and threatening to take down Nairobi’s citadels of oppression and exploitation.

The other is always the corrupt enemy of ‘my people', and should these prodigious contortionists fall afoul of anti-corruption of other law, they quickly cite the enemies of the people in Nairobi for targeting their people, and the people in turn rise up to defend their champion against the persecution and humiliations that have been meted by the state since the days of our forefathers.

The constitution set out a coherent decolonising agenda to secure the government for the people, and eliminate the fundamental contradiction at the heart of the state. This is the only way democracy can become a platform for the people to actualise their sovereignty, not a mechanism for recruiting political double agents. It also facilitates a war on corruption that does not run in circles, like an addled beast after its own tail.

Completing the constitution’s decolonising agenda will efficiently purge the system of land grabbing, inability to enforce regulations and runaway impunity.

- Mr Ngéno is an Advocate of the High Court