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Ethics And Ideology In A Constitution

By Prof. Vincent G. Simiyu

19-12-2001

1. A Definition and the Concept:

Ethics studies human actions in terms of right or wrong. In that respect ethics studies the morality of human action undertaken at individual level or collective level. Social groups and individuals do, therefore, provide the subject matter of ethics. This is why ethics is also called moral philosophy.

Etymologically, the word ethics is derived from the Greek work ethos, which actually meant custom or habitual mode of conduct.

The concept of ethics is a concept of judgment between right and wrong, between an action that is judged to be morally wrong or right. Ethics is, therefore, an area of production of knowledge that applies to the daily lives of individuals and societies as they grapple with the choice between right and wrong.

2. Choice of Voluntary Action:

Ethics deals with deliberate or voluntary actions. Voluntary actions are infinite in number because they relate to the infinite activities of individuals and/or societies, social groups or sections of societies. These actions can be work, play, conduct, behaviour, practical moves, practical activities, the spectrum is infinite.

Involuntary actions are usually limited in spectrum and they do happen in spite of the human will whether individually or collectively. They are actions over which humanity has no control. Examples of such actions include, but not exhaustively, breathing, digestion, natural sleep, natural phenomena beyond the human control like accidents, earthquakes. Some actions may border on both voluntary and involuntary actions. Natural sleep is involuntary. However a police officer on duty is supposed to be awake inspite of the natural urge to fall asleep. If he/she lets him/herself slip into sleep that could be judged as an unethical act.

A young person may have a dilemma of an ethical choice to make. He/she may decide to opt for paid work because he/she thinks that the parents and/or relatives have made enough sacrifice for his/her education. It's time for him/her, morally to pay back by working and giving some money to the family. He/she may also think that he/she has the final responsibility if his/her future life. He/she wants to live a comfortable way of life in future and the key to that is higher education. The choice is his - the ultimate morality of his/her choice lies with him/herself only.

One therefore chooses to do such and such action. If the person chooses to do the right things and adheres to them and, beyond the individual a society or a section thereof chooses to do the right things, then ethics is the science of right living.

Societies or social groups set in place systems of morality which they expect their members to adhere to. These are ethical systems. Ethical systems are as old as human societies and are as many as the societies are. And no ethical system can naturally evolve in two different societies. However, since ethics deals with human actions there are universal principles and precepts that apply to all human societies, albeit with local variants.

It must also be noted that in history more powerful societies or even individuals have imposed either through peaceful influence or more often through military and economical conquest and domination their own ethical systems onto other societies. We shall come back to this. But for now let us by way example, examine ethical systems per se.

They are systems of moral principles which are set in place and against which individuals and/or social groups' actions are judged in respect of the morality of those actions.

In "Things Fall Apart" by Chinua Achebe, the main character is Okwonkwo. Okwonkwo made a choice quite early in life that he was not going to be like his father. The father was reputed in the community as a lazy person who planted his yams on exhausted fields which other men had abandoned. He did not go for the virgin lands that required the hard labour of cleaning the big trees and thick bushes, not to mention breaking the land.

His yam yields were always poor, in a society which cherished and judged men according to the yam harvests. Young man and later adult Okwonkwo always went for virgin lands and long before he married his first wife, he had several yam granaries in his possession. He later became polygamous and rich by the social standards of his community.

His father died and the spirit joined the world of the "Living Dead". His father's spirit was, as usual, thirsting for the sacrificed blood of an animal; goat, cow, whatever,

Through the medium of dreams of elders the spirit of Okwonkwo's father requested his son to make the sacrifice. Okwonkwo was furious and his answer to the elders was curt.

"Go and ask my father, when you were alive, did you leave any goat, cow, chicken, anything, that you now want slaughtered?".

Two things emerge from this imagery. First Okwonkwo's society had developed an ethical system that required hard work from men. A man worth his salt must be a hard working one who planed yam on good, virgin and fertile land that gives good yields. This also means that a good society must develop a work ethic where one earns something through hard work. A society where people acquire wealth without working for it is a wrong society, is a society where ethically wrong actions are tolerated or even encouraged. A former governor of the Central Bank of Kenya once said "Kenya is a country where millionaires have not worked for their millions".

As Kenyans make their Constitution they need to consider inserting in it some provision about work ethics.The other derivation; from the Okwonkwo case is that ethical principles in an ethical system are binding even to the dead. The dead should not make unethical, read morally, unacceptable demands.

This second derivation or interpretation may not be feasible in a Constitution, but reveals the vital importance of ethics in a society and therefore in a Constitution in one-way or another.

3. Public Morality:

An ethical system also determines the way people, especially adults and leaders behave in public. These are rules or principles of public morality. The concept of public morality is hinged on a higher philosophical concept of highest and common good. The Aristolian principle of a society and its members pursuing common good and happiness is a deep philosophy. Disaggregated to a lower level it is actualized into people adopting a public mode of conduct that promotes the common good. Defacing a public monument like the "Uhuru Pillar" with posters, writings etc. may or may not be covered by a specific law. An individual citizen will refrain from such act not because of the fear of punishment but for a higher moral motive:

"the respect for things public" (res publica).

If a leader does some act that is deemed unethical by the public, the leader should by the standards of public decency, public comity, public morality, resign from office. The leader does not have to await public outcry, demonstrations, even violent manifestations before stepping down. Being charged in a court of law for an alleged crime is enough ground for stepping aside, political expedience not withstanding.

In Africa and in Kenya today, lack of an ethical public code of conduct has ruined society. Leaders and individuals are left to their discretion to the detriment of public morality.

Public morality has a lot of ramifications. The above statement has to do with the individual value of self-judgment, self-criticism. To what extent has/have the individual(s) been imparted with the cultural value of assuming the ultimate responsibility of their actions? To look at extent has society imparted on its individuals the value of truth? Whether this truth is at the individual level and especially at the public level?

When the executive scuttles the truth to which the public is entitled, what message is it sending to the public in terms of public morality? When the executive from the top to the lowest creates a culture of lies, what is happening to a perceived code of public conduct? Isn't it high time for a code of conduct were incorporated into the constitution for the common good? Isn't it high time that the erosion of public confidence in the leadership of the country, not only the executive and the political leadership but also for all, were halted?

In a society that recognizes cultural cum ethnic plurality, a related issue emerges. That is the question of ethnic line-ups in public office appointments.

In Uganda, the President forced his brother to resign from public office when it became evident that the latter was involved in high office corruption and scandal. In Zimbabwe, Bishop Banana, a Vice President, was forced out of office on the account of homosexual immorality.

Until President J. F. Kennedy appointed his own brother Robert Kennedy as Attorney General the ethical issue of nepotism had not arisen. The American constitution was amended - the Kennedy Amendment to prohibit any US President from appointing his/her relatives to public office.

Is it ethical in Kenya to have ethnic line-ups in public office appointments whereby a Minister, Assistant Minister, Permanent Secretary, Deputy PS, etc all come from one ethnic group, especially the group in political power?

How is a code of conduct for public office especially, but also for the general public, to be incorporated into the Constitution? We shall come back to this in the internal conclusion of this section.

4. Ethics and Law:

We shall be short on this aspect because the Commission has a whole pride of men and women of law to handle this aspect more competently that I can even dream. I will limit myself to one small angle: the Justice of Laws. It is not simply the incompatibility of the laws and the supreme law (the Constitution) that I would like to raise. It is the very justice of the Law including the Constitution. A historical precedent existed in NAZI Germany. Adolph Hitler and his 3rd Reich leaders never did anything illegal. Hitler always made sure that whatever action he contemplated was duly preceded with a law in the Bundestag. But was justice enshrined in those laws? NIET. They were inhuman and therefore, unjust laws.

Property laws, especially land laws in this country are unjust laws. The laws governing the ten mile coastal strip, the laws governing community or is it communal, sacred places (the Kaya, Chingoba, Nchuri Ncheke lands) have not been harmonized with the 1894 India Land acquisition Act and the 1897 Legislation as applied to Kenya.

A British precedent on this is an eye opener. At the peace of Westphalia, 1648, ending the religious cum political 30 years' War it was stipulated in one of the articles that any property lost by any of the religious factions - Catholics and Protestants, was deemed to have been lost forever. Thus Catholics lost property, churches, cathedrals and land in England, Denmark, Sweden, while Protestants lost in France, Spain and Portugal.

However, for the case of England, two hundred years later, 1848, a long process of legal restitution of property to the rightful descendants of the original owners of property started and might have been completed early 20th Century.

Isn't it ethical that a similar process be bravely undertaken in Kenya and the start would be to have the principle inserted in the Constitution? In short, there is need to decide on Kenyans basic ethical principles underlying not only the Constitution but also other Laws. We cannot meaningfully reform the laws unless we agree on the basic ethical principles and philosophies against the background of which to reform those laws.

5. Ethnics and Religion

Ethics and religion are very close because humanity is very religious. Indeed one of the differentiation factors between anthropoids and humanoids is the human belief in the world hereafter. Religions, whether formalized and codified or otherwise, have used their ideologies to impose their ethical systems and principles first on their members and second on the others who are brought into the movance of that religion. The positive aspect of this interaction between ethics and religion has been a peaceful infiltration into societies, social groups or even countries.

The negative aspect has been that religion is extremely intolerant of other ethical systems, codes of conduct and systems of belief. Islam for example is not simply a religion, but a way of life, a whole system of how a Muslim person must live in daily life. Christianity too, especially Catholic, has some rules of conduct with regard to prayers and so on.

The intolerance has led to some of the most violent wars in history up to the present (The September 2001 plane crashings into the W.T.C. and the Pentagon in the U.S.A.).

From the very ancient times of Hinduism, Buddhism, Macedonian or Alexandrian ethical systems, Roman system, Judaism, Christian, Islamic, medieval crusades, laws of religious reformation in 16th Century Europe, modern wars in the middle East, all have exhibited such religious intolerance and violence that have shaken the very ethical roots of humanity and the value for human life.

Non-religious ethical systems like atheism, communism, scientific socialism, anarchism have also erred by the other extreme. Establishing national ethical standards means carrying out a balancing act of averages between those extremes. It means give and take for all in the society. Various ethnic groups will have to give up some of their ethical values and adopt positive ones from other ethnic groups.

6. Professional Ethics;

Here again we shall be brief because all major professions have established their own ethics of professional conduct: doctors, engineers, architects, lawyers, pharmacists and others.

On this score we shall mention in passing where the Western civilization has robbed Africa of its professional credit in professional ethics. In human medicine we are told that the Greek Hippocrates (420 B.C.) was the "father of medicine". The truth of the matter is that Hippocrates had access to the library of Imhotep at Alexandria. Imhotep, a personal physician of Pharaoh Djozer of the 3rd Dynasty (2700 B.C.) was the first to postulate the natural causes of diseases, wrote manuals for training doctors on how to diagonise diseases, examine the patients and decide on the treatment. The oath of the profession of medicine attributed to Hippocrates was actually plagiarized by him from the works of Imhotep, who was also an engineer and architect. Imhotep's oath read "I will adopt the regimen which is my best judgement beneficial to my patients, and not for their injury or for any wrongful purpose and I will not give poison to anyone, though be asked ....... nor will I procure abortion"

These are exactly the words put in mouth of Hippocrates.

The point here is that even in professional ethics the Western civilization has engaged in unethical activities of plagiarism to say the least. For the purpose of the Constitution, there can only be general framework stipulations.

To conclude this section we propose that basic Kenyan ethical principles be incorporated into the Constitution. They can be formulated as a national Code of Conduct or as Ethics and Public Morality, OR in any other formulation.

They may be stated in the preamble or in special section in the body of the Constitution or both.

From the practical point of view the Commission may need to consider these matter at length with further inputs before embarking on the collection of views from the public. Ultimately, it is the responsibility of Kenyans themselves with the help/guide of the Commission and its Civic Education programme to provide the fundamental ethical principles and code of public conduct.

IDEOLOGY:

Ideology can be defined as a set of beliefs, principles, social laws that a political movement or group articulates to convince other people so as to achieve its goals. Those goals are usually political for the achievement of political power. Ideology is, therefore, usually political.

However, ideology can also be cultural and especially religious. In history, there have been many examples of politico-religious ideologies. The ancient Egyptian belief of God was a good example of a political religious ideology. Indian spirituality as a basis of civilization and political power is a good example of political religious ideology. The Christian belief in the creation of the universe and everything in it is a cultural ideology. However, when St. Augustine argues in the "City of God" that the Roman civilization had to fall because it was Pagan and the everlasting City of God where rulers would show their legitimacy from the ordainment of the Christian/Pope he was propagating political religious ideology.

The Romans also believed in their gods that intervened in political life of the state. When a general won a major battle and was returning he had to stay outside the walls of the city of Rome until the Senate passed a special law allowing him to move through Rome with his troops bearing arms. As for himself, he was on a white horse naked because he was now a god. The medieval and European absolutist powers resting on divine ordinance through pontifical or other claimed divine enthronement were all political religious ideologies. The Islamic belief that it is only Allah who gives the Khalifa the legitimacy to rule is a political religious. Historically Islam and other similar religions have established theocracies which is a combination or to use montesquieu's characterization a confusion of the state and spiritual authorities.

The above succeeded, especially in the ancient, medieval and early modern Europe where rulers wielded both spiritual as well as temporal (things of this world) power.

One can say that virtually all-African political systems before colonialism were based on and articulated around politico-religious ideologies. The Alafin of Oyo, the Asantehene of Asante, the Mwami of the Rwanda- Burudi to name but only those, wielded both religious and political power. The Mwami of the Banyarawanda was untouchable by ordinary human beings because he was a god. In 1959 he used that spiritual endowment to crush the first coup attempt against his regime.

The non-centralized African polities also rested on the some combination of spiritual and temporal ideologies to remain in power. The Nchuri Ncheke, the Wazee wa Kaya, Baswaala Kamuse use spiritual ideology to impose their political authority on their respective societies.

Non-Religious Political Ideologies:

While the above has been generally true, there have been other ideologies in the history of humanity which have been non-religious, even violently anti-religious. The first set of these and about which we shall not say much anarchism, ideology that denies the need for an established order of things in society. Its proponents argue that everything should be left to the natural flow of things in society. They reached their climax in the last half of the 19th century, especially the last two decades. The ideology has waned since.

Another non religious political ideology is materialism that goes back to the ancient Greek Philosopher Hieroclitus of the 3rd century B.C. The ideology was taken up much later by Karl Marx and his friend Friedrich Engels of Germany from the second half of the nineteenth century. Others in that school of thought were Vladmir Ulianov Ilich (Lenin) the first President of the Socialist Soviet Union 1917-1924, Mao Zedong, and many others in the 20th Century. They believe in the materialist and scientific origin of the universe. And so they deny the God as the Creator of the world and call that ideology idealism. They believe in dialectical materialism which is a system of understanding nature through contradictions.

That the law of natureis through perpetual contradictions and resolution of those contradictions. The system is like this: thesis-anti-thesis, synthesis. The synthesis is as different from the thesis as from the anti-

thesis. A seedling cannot emerge from the seed unless the seed is destroyed, a chick cannot emerge from the egg unless the egg is destroyed. And the chick is equally different from the cock as from the hen. It is a system of perpetual change.

In human society, they believe in historical materialism as the philosophy of history. Human society has developed on the basis the class struggle. In the latest stage it has been the struggle between the class of capitalists who own the means of production and Proletariat who own only the labour which is exploited. This is capitalism. The overthrow of capitalism ushers in a scientific socialist stage where the workers are on top to suppress the capitalists (bourgeoisie). Capitalists used the state to suppress workers. Workers too having taken over the state use it to suppress the bourgeoisie. When that is accomplished the society is at a communist and final stage of the class struggle and the state dies by itself. Under Communism each individual gives to the society the best of his/her ability and gets back the maximum of his/her needs.

Needless to say that up to the fall of the iron curtain i.e. the Soviet system in 1989 no society in the world had reached that stage in spite of the claims, counter claims, accusations and counter accusations, especially during the Cold War.

Some African countries tried to experiment with this brand of socialism without much success. Nationalism is yet another non-religious political ideology. However, there have been and are still very many shades of nationalism. Islamic nationalism is religious, based on the ultimate precepts of Islam; national socialism of Adolph Hitler of Germany of 1919-

1945 was the other extreme, a violent racist, irreligious nationalism of the extreme right. Fascism of Muslim of Italy 1919-1943, was yet another of the kind.

Between these two extremes there are the mainstay nationalisms as political ideologies for the acquisition and recognition of a nation, territory and in the 19th century Europe a sovereign and democratic government. Examples are many. Greek and Belgian was of independence, German and Italian unifications are a few cases.

Third world countries like India, Indonesia, Syria, African countries waged nationalist struggles to gain independence from the colonialists. They used the nationalist ideologies modeled on the Western European ideologies.

Some African leaders like Julius Nyerere and Leopald Sedar Senghor of Senegal tried an amalgam between Utopian socialism and African social beliefs and principles of hospitality, generosity, and political consensus based on mutual tolerance, and consensus. They called their ideology African Socialism.

It soon became clear that African Socialism had two branches too. One was actually a disguised form of capitalism and another a disguised eastern European type of socialism albeit with some strong African nationalist dose.

On the whole, African Socialism ended up being a shallow variant of capitalism.

Capitalism:

This an ideology that has evolved in Western Europe since the end of the European medieval period (15th Century) and beginning of the modern period (16th Century).

Its basic tenet is economic free enterprise, individual pursuit of profit and accumulation of wealth and re-investment of part of that profit for more profit. It is the underlying ideology of the current Western and its off-short civilization of North America, Australia and their former colonies. Japan is part of that ideology. And since collapse of the Soviet Union in 1989, it's the generally the overall world ideology. Third World countries are simply following suit at different stages if not directions. In political content, capitalism embraces the ideology of liberalism.

Liberalism:

Liberalism is a political ideology that developed first in the England of early nineteenth century and then spread to the rest of Europe, except Russia and Eastern European Countries. It has survived to the modern times as the underlying ideology of capitalism.

Its proponents believe in maximum individual freedoms and rights. The current Kenya Constitution is a typical example of a liberal political document that governs the management of public affairs. Liberalism like capitalism emphasizes maximum freedom for the

individual not only in political and social matters but also in economic and cultural matters. There should be less and less government in individual people's private, lives, economies and cultural lives. The Government is supposed to provide the enabling environment by promulgating a liberal Constitution with checks and balances, liberal laws, guaranteeing basic human and civil rights but leave the rest to the citizens; individual and social enterprises, initiatives and creativity.

The State should only ensure internal law and order and security against external aggression. The Kenya Constitution being a liberal one, the Commission can only make it more liberal but with more social internal checks and balances of power.

Racism:

This is an ideology that is quite ancient. It believes in the supremacy of one race above another or others. In the ancient world and later times, Jews were seen as people who did not want to mix with other races.

The climax of racist ideology was in the nineteenth century Europe when some European scholars falsely argued that survival of the fittest law also applies to the human societies, apart from the plant and animal worlds. They falsely argued that all human achievements have been by an indo-

European race called Aryans, a mixture of central eastern Europeans and Northern Asians.

Hitler's NAZI system was the worst example of racist ideology when it tried to wipe out Jews from the European map, especially in lands conquered and occupied by Germany. But Russians had also carried out anti-Jewish polgroms.

It must be pointed out that since the revolt of Blacks in Baghdad in the 9th Century AD and the brutal crash of all Blacks in the Abbassid Europe, black people have for now more than one thousand years suffered racist violence in both the Muslim and Euro-Christian civilizations. The two civilizations have used the ideology of racism to enslave and practice slave trade against African peoples inspite of the fact that both religions of Islam and Christianity do not officially sanction slavery and slave trade.

We need to mention two more ideologies for the purpose of the Constitutional Review. Republicanism and Secularism.

Republicanism is an ideology that spells out the nature of political regime. It wants the Constitution to spell out clearly that a country is a republic and not a monarchy. A monarchy is a regime where there is a King or Queen like Great Britain, Swaziland, Sweden and so on. Article 1 of the current Constitution of Kenya declares that, but an amplification of that could enshrine the ideology of republicanism either in the preamble or a full section comprising several articles declaring republicanism as one of the basic ideologies underlying Kenya's political regime. The republic should also embody its unity and indivisibility as yet another sub-ideology.

Secularism:

This an ideology that believes in the separation of the State and the Church. We saw that there has been a lot of mixture between politics and religion. Formal religious like Christianity and Islam have managed in the past and for Islam upto today to have an iron stranglehold on the political affairs of the State.

Liberal movements struggled to achieve the separation of the State and the Church. In the Western Christian world and in the former socialist countries this was achieved and enshrined in the Constitutions of the countries. But not in all. Where a religion is declared an official state religion that political regime in a theocracy and not a secular republic. Even a republic can be a theocracy like virtually all Muslim states of today, Libya and Iran to mention only those two. Sudan has imposed Sheria on the whole country including the Christian South and that is why there is the long protracted civil war.

The current Constitution of Kenya is silent on this issue. Secularism (or simply separation of the State and the Church) should be spelt out clearly as one of the underlying ideologies. Religion then becomes an individual affair guaranteed by the right to freedom of worship. There should be no mix of State functions and religious functions.

CONCLUSION:

Ethics and ideology are, therefore, very important aspects of a society and should be reflected in the Constitution. The Constitution, being the supreme law of the land, ethics and ideology together with culture being the very fabrics of the society should very well and clearly articulated in there.

We propose that these three be feature in the preamble and also in a special section devoted to culture, ethics and ideology. There should be a National Code of Conduct. It is up to the Commission to reflect over this matter and consider it.


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