|
|
[Home] [Help] [Databases] [CommonLII] [Feedback] |
|
Constitution of Kenya Review Commission |
By Prof. Joseph Nyasani
12-09-2001
PART I
Relevance of Morality in Law
Morality and law are inseparably bound together in their prime objectives as they both reinforce each other in the consolidation of those principles and values upon which, ultimately, the humanity and humaneness of the society thrive and depend and also for the realization of those social and political ideals which compel the society to enter any form of social covenant.
Since every society in its own peculiar way must be a moral one at least in the pursuance of certain fundamental principles or even in the vague general pursuits of vaguely perceived ethical values and norms, law cannot be indifferent or irrelevant to this natural and ontologically grounded reality since, to do so, it would stand out like a foundationless law with no practical and motivating scintilla. Since moreover any morality must inevitably envisage or aim at the realization of social harmony, mutual tolerance, (social equipoise in a sense), law cannot be an indifferent spectator to this process because it too aims at the realization of harmony, social tolerance and cohesion as well as respect for all fundamental rights as articulated by moral codes or moral norms and values wherever it is found to operate.
The relationship between morality and law is a complementary one and one that is founded upon the principle of mutual reinforcement and fecundation especially considering that law cannot entrench itself satisfactorily where morality is either declining or is at its lowest ebb. Indeed, law and morality must be intimately related in the sense that the relationship must strictly thrive on the presuppositions and principles of necessity because, apart from the fact that there would be no law where morality is at the crossroad of decline and decadence, it would make no sense at all instituting a legal regime. Such a project would be totally devoid of a fundament since it would neither be confirming nor declaring nor even explicitating anything in this curious symbiotic relationship.
Indeed where morality relates over and above the province of propriety, rectitude, righteousness and probity of conduct, it must also ipso facto extend to the whole spectrum of those intrinsic values, norms and cultural practices whose observance makes life livable, tolerable and reasonably self-regulated. As it is, the observance of this range of so-called axiological normatives, it must be complemented by an established legal regime or legal mechanism to oversee the exercise of its enforcement in order to guarantee the promotion and improvement of the quality of social life. In this sense then, law is effectively a penumbral representation of values, usages and virtues of the society especially in as far as they (usages) constitute tacit and passive deontological conditions for those who freely choose to subscribe to them.
Again, since the object of any legal system is the promotion and protection of the society's positive values and norms, no law can claim any meaningful validity, social impact or regulatory force where the institutions of social morality appear to be crumbling because it would clearly be devoid of ratio existendi (reason for its existence).Indeed, because law is the presumptive regulator of the conduct of all rational beings, these same beings also happen to claim an interest in the existence of a rational mode of living one towards the other even long before the appearance of the law. In this sense, law must be said to complete the project which man starts rather spontaneously and sometimes without relating it to the regime of sanctions or threats What this in effect means is that law and morality are not only compatible but also convertible at least in their material object.
It is even possible to argue that no morality, particularly public morality, can be sustainable and indeed purport to posit as a reality in the total absence of some viable legal institution or some form of loose conventional arrangements with some kind of inherent recipe of threats or social sanctions. This is particularly the case considering that the legal regime is like an embodiment and channel for the furtherance of those norms and principles that the society generally regards as tenable, just and reflective of its natural morals and behaviours.
In the general above sense, law must act as the facilitator of a favourable and conducive environment for the observance of the already identified positive customary morals even if only doing so under the pressure of the rules of equity and natural justice. Similarly in this sense it should be equally argued that a good law should not appear to stifle or oppress some positive custom or usage even where it does not incorporate it or even where such a custom does not enjoy legal protection provided it is not in any way morally reprehensible or openly subversive of legal authority.
Functionally speaking, both public morality and public order act as guarantors for the facilitation of a humane society and for the perpetuation of the efficacy and effective superintendence of the legal regime. In other words, they act as what scholasticism calls conditio sine qua non for the successful operation of the laws and their general cognisance.
Law or the existence of law effectively becomes the outward expression of the natural moral impulse that is naturally the inextricable reality of human nature more so because the intrinsic characteristics of human nature is to strive to be moral or rather to be concerned with the behaviour that typically touches on life's aspects of good and bad or right and wrong. And as long as man pursues the course of attaining and enjoying some good, the more the need arises to institute an effective mechanism to guarantee this positive disposition. Obviously this positive effective mechanism is no other than the formal institution of some legal system that is founded upon the general assumptions of some consentaneous will of the public sensitive to and facilitative of the efforts to attain the society's declared or undeclared social ideals.
The law in the above scenario acts like a crowning process in this seeming panoply of vague desires to maintain and sustain what is perceived as a social good or even as an ideal social desideratum. In this sense, law cannot be regarded as another extraneous or imposed alchemy or creature but rather as a natural offshoot of the human nature's natural and ineluctable character in the overall scheme of human self-unfolding. In this sense, we may even go to the extent of averring that in the heart of moral or moral desires, there is always a flickering scintilla of the basic desire to establish a legal order in whatever form. Again as a corollary, moral order and legal order are not only compatible but also complementary and, in effect, mutually fecundative.
Because of moral compulsions or moral dictates to attain some good or to safeguard certain social values, a superstructural legal edifice must be presupposed to effectuate and guarantee this and, in this way, create a situation whereby morality and law are set at very intimate, contiguous and functional rapport. Hence there has to obviously exist both the element of compatibility and complementarity between any humane legal system and any treasured positive moral patrimony of a people in this regard.
Furthermore, law and morality are related on the basis of their primary target or object, namely, the facilitation and promotion of justiciary institutions and norms always foreshadowed by the natural conscience of the indiscriminate dispensation of the principles of justice and by the vague sense of wanting to accomplish acts of equity and natural justice. And as long as man therefore harbours the consciousness of the principles of justice, the law must be said to operate in pursuance of and actual attainment of this important social ideal that we call justice.
The consideration of wanting to execute justice therefore seems to motivate human beings to take a further step towards the institutionalization of an effective mechanism for guaranteeing fairness and equality of treatment. This effective mechanism is obviously the legal institution itself. Again as a matter of corollary, if law is about justice and the promotion of justiciary institutions, ideally no law should display qualities of injustice. Maybe, it was for this reason that the immortal St.Augustine was compelled to remark that there has never been a law that was never just (non videtur esse lex quaejusta nonfuerit).
In conclusion to this section, we may safely aver that morality even in its inchoate and primitive stages, is ultimately responsible for the emergence of legal institutions or any other formal conduct-restraining social mechanism and, as such, the relationship between them (law and morality) is really an obvious one. Indeed, law and morality cannot be dichotomous but effective complements and natural bedfellows. They indubitably share an intimate relationship and actually converge in many respects both functionally and in their material object.
Moreover we must affirm the proposition that it is perfectly natural for all human beings to claim an interest or some right be it natural, ontological or acquired as long as they are condemned to the reality of social existence. And if indeed it is true that the right or interest must be protected out of the natural instinct of sheer deontological human disposition character born out of the natural obligation or duty to assert and defend this instinctual endowment, It must be ipso facto be the case that an effective mechanism is created to protect and guarantee this natural urge which primarily posits as a primordial instantiation of morality. This mechanism, in human social relationships, is no other than the institution of the law. Hence morality and law must be assumed to go hand in hand both as concomitant realities and as inevitable compatibles even if only as a vague crystallization or elaboration of one or the other. Hence we can safely assert that morality actually or presumptively projects and promotes the idea of law and the law likewise, affirms, confirms, consolidates, secures and crystallizes the social sense of morality.
Finally, to understand the purpose, social utility and function of the law in society, it is imperative to understand and appreciate the aim and role of embracing and practising morality within the society. This, in my view, should be the greatest challenge to the Commission as it goes round the country disseminating civic education and soliciting the views of the public about matters related to their moral sensitivities. A clear inventory of popular reactions therefore needs to be made and preserved as critical background information while drafting the new constitution avoiding as much as possible the danger of offending people's sensibilities and their perceived rational beliefs and values as we shall see later in this expose. This is an exercise that should be conducted with a maximum sense of circumspection and prudence.
PART II
Ideological Basis of a Constitution
As we grapple with the problem of trying to crystallize the idea of producing a good constitution, it must be fairly imperative to equally outline some of those principal ideas that go into the structural edifice of such an important document as the constitution. Such ideas are obviously diverse and sometimes inherently disparate but viable enough to claim a place of some prominence in the theoretical construction of a people's worldview. Whatever the case, a body of such critical and central ideas that appropriately reflects the belief system, concerns, interests and sometimes apprehensions of a people may amount to the general concept of ideology and specifically so if they happen to be an integrated subsumption of some co-ordinated scheme that acts as a driving force for social, political and economic endeavours on a collective basis.
Indeed, this body of co-ordinated tribal or even national interests, beliefs and concerns helps shape the people's thinking in a certain peculiar way as to predispose them towards adopting a common philosophy or common approach to issues affecting them even though perhaps for the wrong reasons at times. It is for the latter reason that philosophy has come to designate ideology in a rather pejorative manner as an idea or set of ideas that may be intrinsically false, sometimes misleading and not infrequently cherished for the wrong reasons but ultimately controlling in belief assumptions as being absolutely irrefutable and irresistible.
What the above means in essence is that an ideology of whatever shade or description seems to be an agent for galvanization for good or bad reasons and often a reliable buttress of the people's resolve to perform, achieve or simply pursue a certain course of action resolutely. It is implicitly a conditio sine qua non (necessary condition) in the whole scheme of the people's social awakening and subsequent unfolding in whatever direction provided it ;;is in conformity with their social and political configurations.
An ideology that is all-encompassing and one that is not distraught, seasonal or inconsistent can act not only as a mere uniting force but also as a motivating factor even to the extent of rekindling those flickering impulses necessary for spontaneous action and for undertaking personal initiatives that the community so desperately needs to realize some of its significant aims in the society. Even in this sense alone, we can say that in the absence of a firmly established and acknowledged ideology very little in the nature of social mobilization and affirmative action can take place and even less so in the field of social and juridical empowerment.
In very simple terms and following from the above, no individual can feel fully empowered if he/she is not backed by some consensual arrangement that emerges from a common philosophy of general purpose and intent. Call this philosophy what you may, it must ultimately boil down to a relatively elaborate sketch loosely referred to in some civilizations as a comprehensive Weltanschauung or the philosophy of man' empathization with the world or simply as a philosophy of life and man's destiny in the universe all amounting to an ideology in the final analysis.
As a matter of fact something very fundamental seems to lie behind this simple notion of ideology in the nature of the spontaneous loyalty to oneself and one's fatherland. It is possible to assume that an individual passionately committed to his/her national ideology is likely to put this commitment above everything else in discharging those duties that lie to him both as an enlightened individual and as a member of the corporate society hopefully driven on by an ideology.
Where indeed an ideology serves as a driving force of the society, there can be no doubt that certain of its elements reflected in the constitutional document can fail to equally serve the same purpose or at least confer some degree of impetus upon the general will of the people in the direction of respecting and obeying it (constitution) not so much for its own sake but more for the sake of social and political harmony and mutual tolerance.
Very tortuously therefore an ideology acts as something of a marshalling agent of the public's good will to respect not only the constitution as such but also to develop a sense of cognizing the import and benefit of observing the rule of law. Again, an ideology is like a remotely lurking social conscience which finds an expression in such overt acts as patriotism or patriotic redresses, self-denial, allegiance to state authority and amenability to the country's established order and institutions, the execution of national duties in the spirit of transparency and accountability and all acts intended to enhance the state of national salubrity and security.
Thus very remotely an ideology provides an orientation, a vague vision and a determination to sketch and map out a desirable course that the nation may be assigning itself and in the process and additionally offers some kind of mechanism for execution and forbearance. Ideology in this sense is a kind of vade mecum shadow of political rectitude and patriotic conduct. Now these characteristics of ideology, seem to speak for its desirability as an effective tool for marshalling the necessary public awareness towards certain fundamental social, legal and political responsibilities that the society faces on daily basis in order for it to accomplish its mundane objectives in the spirit of its already declared intents embodied in the social covenant. It is for these reasons that the commission should place much premium upon the reality of developing a clear-cut concept of a national ideology capable of accommodating an effective forward- looking vision and also of producing a mechanism for restraining legal, social, political and economic excesses. Ideally this kind of ideology should evolve out of the cultural and moral realities of this nation and this is an exercise that ought to be undertaken with maximum judiciousness and along the lines of conducting a thorough investigation and identification of national values that I have extensively discussed in the subsequent sections.
PART III
Development of National Vision and Philosophy in Constitution
In order to develop and incorporate a national vision and philosophy into the draft document of the constitution, the most important task to be undertaken, in my view, should be inevitably concerned with the task of clear identification, delineation and crystallization of the country's common values which must feature as the galvanizing elements of that structural edifice that can appropriately envision the cultural reality and at the same time be capable of outlining the critical temporal and historic circumstances of those unforeseen changes that may be found to overwhelm the society from time to time. This is in effect to say that the final document of the new constitution must as far as possible exhibit qualities of relative objectivity and palpable sense of detachment from possible narrow interests that may threaten to creep into it through the backdoor.
Inasmuch as the bonafide drafters are entrusted with the crucial task of tempering and attenuating partisan or sectarian ideologies and are committed to their task, they must be expected to conduct themselves in a manner that does not betray the trust invested in them by, for example, appearing to bend the rules in favour of some partisan interests or in favour of some tramontane ideologically prompted, induced or prodded interests from any quarters. This, of course, should not mean that the drafters must be expected to turn themselves into acrobats, automatons or insensitive characters to the spirit and aspirations of the general public that calls for the re-writing the constitution. On the contrary, the team should be robustly sensitive to the public constitutional recommendations and concerns without however reducing itself to the status of a mere instrument or rubber stamp of automatic implementation without weighing the short and long-term implications of the public's sensitivities and anxieties against the background of national interests in the global political realities of the modern era.
Whereas therefore there may be certain overwhelming national interests to be safeguarded by a constitution that is appropriately reflective of the country's and people's aspirations and preferences, and whereas this may generally pose as the reasonable middle ground for the public opinion, the drafters may sometimes rise against the spirit of automatic public expectation relative to the wholesale reproduction of the public's recommendations and sentiments in the new constitution if in their judgement it is found to merely serve short-term, ephemeral and frivolous interests and then quickly fall short of adequately safeguarding and promoting certain other supervening and possibly countervailing more permanent interests and concerns that may mature within a reasonable flux of time dictated by developments on the global scene. In other word, the drafters, aside from being regarded as the bona fide custodians of the people's trust in this momentous exercise, they must also betake and in fact regard themselves as the people's advisers and never as mere agents of real, inconspicuous and unobtrusive power-wielders or power-brokers behind the stage.
Somewhere along this indeterminate conspectus of the people's views and anxieties there must be points not only of accidental convergence and commonality but also points of substantive and earnest concern as well as points of moral philosophical inquietude or those of general value decline in the society. These may of course have to do with value instabilities and social drifts, deviance and other perversive modes of existence. Now these deficiencies, in my view, should be quickly identified and subjected to some thorough systematic analysis as possible fodder or raw materials for forging some kind of archival collection of serious national views that could be treated as the liminal or threshold material of the nation's conscience and consequently the first building block for a national vision or loosely philosophy.
Having collected a wide-ranging corpus of views of relative convergence, agreement or qualified consensus, the next step, in my view, should be for the Commission to make a concerted effort to undertake a critical appraisal or even re-evaluation of the hitherto state of the geographical, historical and occupational processes of the different communities in order to establish areas of concern, phobias, complexes and interest. In this way, the Commission should be able to glean or at least have a qualified glimpse into each community's psyche with regard to its possible psychological obsessions or reticence which may hamper the possibility of spontaneous openness and accommodation under the present circumstances of psychological and legal reforms now underway.
It is my firm persuasion that unless communities are either given a chance to speak out what lies deep down in their subconsciousness or at least made to open up through psychological inducements which the present euphoric climate seems to portend, it may be impossible to conceive and propose an authentic philosophy or vision that adequately captures and reflects the general conscience of the communities across Kenya. Again, in my opinion, the Commission will have failed in one of its most important objectives of forging or trying to forge a common vision or philosophy as the underpinning stabilizer of the people's constitution if it were to merely rely on the usual assumptions such as those mostly inspired by the mutually tolerated tribal, ethnic, clan or racial prejudices.
Underpinning the success of this fresh re-appraisal, must always be an approach that is humane, compassionate and sensitive to the ethical perceptions of .the community or group targeted. Again, this cannot be realized easily without regard to the state and level of adherence to the community's values and culture. Indeed no amount of academic or even vulgar assumptions can either allay or heal the entrenched psychological crisis brought about by tribal or clan or village prejudices and other irrational belief systems without taking a deliberately conscientious account of the ethical and ideological concerns of each individual group. Where this is ignored even the most elaborate document that the Commission may come up with, may never stand the test of time because it may ultimately be disowned by those whose value interests may never have been adequately explored and expressed.
The above situation is really the delicate tight rope walking that the Commission may be forced to undertake and to do so successfully before it can boast of having discharged its duties with diligence, impartiality and fairness. This exercise is particularly critical because the current state of lamentations against the current constitution or rather the independence constitution and the inability to fully identify with it is based on the fact that it is not people-owned or that it is not fully reflective of the actual Kenyan social and political environment. This is really to mean that the social and political environment that is being clamoured for cannot be the urban one with its stilted and assuming attitudes towards the rural folk. Rather, it must be expressive and reflective of the general morphology and typology of things treasured out there and which ultimately constitute their system of values and cherished beliefs.
Again with regard to the modalities of identifying these common values and incorporating them into the constitution, certain major presuppositions need to be taken into account: one, where a value is taken to mean a rational attachment to some object, idea, belief or phobia that has gained some reasonable currency and acceptance among a people over a considerable period of time or has been found to work well or to benefit the community under review without causing injuries or negative effects to third parties or where it has been tolerated over a long period of time by the third parties out of indifference to it, chances are that such a value may not simply be dismissed as frivolous and irrelevant but should be scrutinized and rationalized carefully in order to make a judgment as to whether or not it may be of national interest for the enhancement of the constitution of Kenya. Two, where a value is unilaterally regarded as an adventure or entertainment cultural practice which may be offensive to the neighbouring community; -and here I am thinking of the proclivity among some communities towards pillage - such a practice that may have matured into a tribal value and culture must resolutely and unequivocally be denied access to the constitution of Kenya for simple reasons that it inherently produces negative effects on third parties and therefore a source of friction and tribal disharmony.
However even this practice should not be rejected downright without proffering some rational explanation as to the reasons for its rejection. This exercise, in my opinion, should be conducted by the civic education bodies and the public administration organs at grass-root level. The Kenya Constitution Review civic education experts must possess some qualities of tact, diplomacy and some modicum of social compassion and understanding as they conduct this vital exercise among the civil populations. It is they who will eventually help heal the wounds of social attachment to certain irrational phobias and practices. In my honest view, this exercise should never be left to some motley rag-tag group of self-styled experts in civic education. On the contrary, it should involve people of acknowledged social and moral probity with a reasonable streak of psychological education or knowledge and who are prepared to employ psychological methods of approach and persuasion.
Thirdly, there will be certain positive ways of the people's manifestations which may not fall directly under value appraisal category but which nonetheless may robustly hold sway to the behaviour pattern of certain communities. These gentle and otiose ways of manifestations may in fact be so overwhelming in some communities than mere cultural and social values that they may even occupy a very critical place in their whole social ontology and external behaviour. I am particularly thinking and specifically referring to the so-called emotional pathology, make-up and psychological equilibrium or disequilibrium which hold certain sections of humanity prisoners of their own emotions and psychology in the most inadvertent fashion. What the constitution experts should be concerned about in this respect is not to encourage these nondescript and possibly retrogressive excesses but to appraise and rationalize them especially where they may accidentally have some vague bearing on the conduct of strangers.
Emotional psychological excesses may not always strike a negative chord or be an alienating factor in the general social relations. On the contrary, certain psychological moods and emotions can within one community; can have a cascading and sometimes a reverberating effect on the neighboring communities to make them more responsive to certain social stimuli or socially sensitive impulses to their own local predicament and in this way to facilitate and develop the strategies for coping with them.
In a very general sense, constitutional drafters must fully explore both the phenomenology and typology of the emotional and psychological make-up of the target community in order to prepare a rational groundwork for proposing an acceptable system of common values in Kenya. Emotional and psychological social phenomena and their distinctive peculiarities may ultimately be the values that the Commission is seeking to articulate in the new constitution without necessarily highlighting their negative aspect.
Once again a good preamble cannot fail to encompass and articulate these otiose values, which seem to lurk in a very implicit way in people's subconsciousness and seem to manifest themselves only when there is psychological or emotional outburst hatched under conditions of the so-
called psychic contrariety in the self. As it happens ever so often, the effects can be far-reaching and devastating if this does not receive a pre-
emptive provision under a humane and sensitive legislation.
It must be borne in mind that part of the problem and maybe the main problem, stems from the psychologically irrational fear or phobia people in different communities harbour against one another. This mutual phobia and suspicion is deeply rooted in the traditional culture of blind prejudice and tribal profiling and stereotyping that have thrived and actually been perpetuated as a psychological defence mechanism against all other communities.
I am not of course advocating the view that the Commission and its apparatus should be transformed into a drilled class of psychologists. I am merely pointing out that certain very fundamental aspects of psychological behaviour not infrequently responsible for certain outlandish and eccentric manifestations of community ethos, may go unnoticed and unredressed unless some deliberate effort is made by the Commission to comprehend and appreciate their implications and ramifications in the forging of a common philosophy based on some realism that touches on the mutual re-discovery of the whole range of explicit and implicit social values.
There are certain values which human beings cherish quietly, subconsciously and inadvertently without actually explicitating them in their daily practical life. Some of these values may even be universally shared but at varying degrees and eanestness. In my view, this typology of values should not be ignored merely because it may not directly fit into the natural project or scheme of constitution making. On the contrary, certain of these values should be incorporated into our constitutional value corpus even if only to fecundate it or enhance its viability as a document of reasonably stable duration. Such values may very well have to do with certain very fundamental virtues that have significantly transformed other societies in their social, political and economic evolution having been declared either as central national driving force or crucial policies for positively engaging national consciousness.
Fundamentally and basically such values are founded on such virtues as discipline, patriotism, transparency, incorruptibility, mutual spontaneity and openness, tolerance and mutual acceptance as well as the observance of the principle of the work ethic. Now these may appear fairly frivolus, peripheral, parenthetical and possibly irrelevant to our constitutional making task and yet the truth of the matter is that their cruciality may be indisputable especially with regard to taking into account the practical objectives any good constitution sets out to achieve particularly the creation of a humane state sensitive to the genuine concerns of its citizens and the spontaneous reciprocation of the citizens to the state's institutional demands and responsibilities accruing to them as responsible and amenable to the dictates of the nation's juridical order.
In invoking and exploiting these virtues/values for the enhancement of our constitution, the drafters should clearly bear in mind their practical utilities and move on to explicitate the benefits they are known to bring in the overall scheme of attaining the society's social ideals and objectives - tranquility and relative happiness. In very broad terms then if our society must realize these two fundamental goals, our constitution should clearly spell out broad modalities of tapping the more practical benefits that can also launch our society on the path to adopting relative universal norms of behaviour and accountability. This general awareness should ideally sharpen and inspire the constitutional drafters in the cogitation of a reasonably broad and inclusive legal framework necessary for engendering and facilitating an ideal climate that accommodates a sense of spontaneity in respecting the rule of law.
The importance of self-discipline and rational self-restraint and indeed transparent conduct in matters of general social concern cannot be over-
emphasized. For these are virtues of absolutely cardinal and virtues of the conditio sine qua non genre and always and everywhere crucial in the realization of the wide-ranging panoply of social projections and aims. More so because no social covenant would subsist in the state of uncontrolled and conflicting interests completely unrestrained either by voluntary imposition of an ethic of self-discipline, mutual consideration or by a relative exercise of the general sense of social fairness and common decency and equity based on the articulate or inarticulate, declared or undeclared principle of reciprocity generally exercisable in all instances of human associations.
PART IV
Procedure of Determining Commonality of Values
Having expounded the possible areas of search for values, the next critical step remains that of determining whether or not they may be common, central and critical to our social and political cohesion and how they can best be articulated in the constitution to the satisfaction of the cross-section of more or less all the communities claiming the right of citizenship to this country. This is really the litmus test for the eventual success of this enormous exercise of constitution writing.
In my view, to determine or establish the commonality of values and norms under this enormous diversity of community practices, belief systems and sometimes entrenched biases, it is imperative to subject them to two distinct criteria of rationalization and evaluation: one, do they constitute or even introduce an accidental dimension for the community in question in terms of its established morality or moral conduct and perceptions generally; two, do they cut right into the substantial aspect of its morality and positive belief system as to likely alienate or alter its attitude in a radical manner vis-?-vis other communities. These are two critical situations which, in my opinion, ought to be handled very cautiously and delicately as the Commission undertakes this rather disparate sampling of values and ethical belief system among target communities.
It is fairly self-evident that human values or other related normative social guidelines cannot be ranked consistently and equally and, indeed, in propinquity with each other without regard to their actual social effect and utility. It goes without saying that the social effect significantly determines people's level and intensity of adherence to some social norm or practice. Indeed a value grows in its significance and importance and produces a meaningful emotional attachment almost in the same degree it produces a palpable social impact, result or effect. To establish the importance the community attaches to any value at all so as to constitute an appreciable level of crucial moment for it,a search must be conducted into the whole phenomenological spectrum of the community's overt acts especially as they relate to its psyche, sense of pride, its sense of aesthetic values and, I dare say, its positive ethnic ambitions and aspirations.
The above, in my view, are the more positive and obvious indicators of ethnic value repository and they must be treated as such in any rational evaluation or integration. What this in essence means is that if the Masai community, for example, earnestly believes that the use of ochre or the piercing of their ears constitutes their sense of aesthetic value and identity, this, in may view, should not be ignored because it may be an important indicator of a very vital value or values as far as the Masai community is concerned. Even where this aesthetic value may not find a suitable basis for incorporation or cognizance,it must never be openly suppressed or deviously outlawed on any rational grounds. Instead the unenthusiastic constitutional drafters might rather treat it with indifference or at best with a per incuriam stance.
With regard to accidental values, it is not difficult to recognize them on the basis of their insignificant impact they make in the life of the community concerned especially in as far as they do not conduce to any fretful or turbulent mood or disquiet upon their breach. In a sense, these are really quasi values and something of distraught social practices which the community cherishes secundum quid (relatively speaking) and without paying too much attention to any detailed or meticulous observance.
As is often the case, quasi values or norms do not often enjoy credible and settled stability since many of them have to undergo a constant change or find themselves either fluctuating or literally succumbing to the circumstantial temporal flux. Indeed, such values never seem to steal or claim either the psychological or emotional persona of the community to cause any meaningful consternation when ignored or suppressed. They are mainly but marginally regulatory and hardly declaratory and even less so mandatory in their binding force. Such then would be the procedure in attempting to identify and evaluate the values to be incorporated in the constitution of a reawakened Kenya.
Having clearly established which values are of critical importance to each community not necessarily on a pari passu basis in terms of taking cognisance, it would be necessary, as a further step, to compile them according to both substantive and striking similarities and also according to the overriding interest they are found to serve in the cross-section of the Kenyan society. This is perhaps the most critical phase in the whole constitutional exercise because the eventual product of ownership of and identification with the final document will largely depend on the extent to which each community's intimate value perception, articulation and expression is mirrored in it or even marginally reflected so as to cause some degree of positive acquiescence or compelling persuasion in its favour. Indeed, it is the minimum good will that the Commission should be striving for where it cannot quite win overwhelmingly. In a society such as ours, even a scrappy or rather an infinitesimal good will, in my view, must be better than none especially considering the popular negative lamentation undercurrent accompanied by an equally negative attitude towards the independence constitution currently noticeable here in Kenya.
The compiling and eventual possible incorporation of these relatively similar values, should be undertaken judiciously and, if need be, in stages on a draft form tentatively made available to the local committees for scrutiny and eventual approval or disapproval and then a revised final form for the general conference. It is important to strictly adhere to this procedure even if it might require an unexpectedly reasonable but protracted period to obtain a representative consensus from across the country.
As a matter of fact the above procedure will obviate trivial situations of sectional disaffection and make the constitutional making exercise enjoyable, secure and decisive. Indeed, with a secure panorama of positively identified national values, the articulation in the final document of the constitution should merely be a routine formality exercise in which the Commissioners themselves should actually derive much pleasure, pride and relatively gratifying euphoria in having to discharge such a momentous task for and on behalf of the people of Kenya. Indeed the exercise should even be more fulfilling if it is undertaken in the sprit of clinical professionalism and without temptations of interested deviations or prompted doctoring for whatever reasons.
PART V
Democratic Principles for Inclusion
In my candid view, a search and identification of democratic principles suited for inclusion should be undertaken in the same manner as values but on two distinct categories of general appraisal: first, it should be ascertained Just like values, if there are principles which are peculiarly unique to each ethnic group on the totality of the community's worldview and in line with traditional belief systems and tribal or ethnic ethos generally.Secondly, it should be ascertained which democratic principles are derived from and based on the reality of modern and universally accepted practice of nations that can be of practical utility to us. Now, these two levels of search,in my view,should find some concrete expression in our constitution for obvious reasons that,if appropriately and satisfactorily documented, they cannot be found to be in diametrical opposition of each other under the current circumstances of globalization,relative effort for harmonization and cross-fertilization of values quietly going on in the world today.
There is little doubt about the democratic principles which modern civilized nations cherish and promote since they constitute vital ingredients of the underpinning doctrine of international norms of behaviour and the conduct of international relations as well as the preservation of the principles of general amity. Again,as it is also the case with all fathomable democratic principles or tenets, they too are born out of national values which accidentally happen to find similarities and practical utility in other cultures and civilizations. As a matter of fact, they may even start out as national ideological impulses or even as disparate and possibly incoherent philosophies which gradually gain a settled currency, momentum and recognition in the rest of the world as to ultimately mature into guiding principles of civilized behaviour among nations.
However, a clear-cut and possibly neat identification may not always be so readily available in respect of those principles generally regarded as democratic within an ethnic social parameter and less so within a setting of highly competing and sometimes conflicting interests as may easily be the case here in Kenya.Indeed, it is sometimes not absolutely unfair to assume that what may constitute a democratic bedrock for one cosmological reality of a community's democratic conscience especially in terms of its social and political conduct, may be at variance with another's depending on the interactive or non-interactive forces or processes going on between communities or tribes.
In the above case, the identification and appraisal may prove to be intractable and elusive since, unlike the domain of values and tribal beliefs whose end-effect is intrinsically immanent in character, the democratic suppositions, perceptions and assumptions may easily burst out of the immanent scope and actually inundate that kind of social scope that involves not only the fellow co-ethnicists but also members of other communities with equally their democratically distinct social and political world-view and conceptions. For, it is fairly self-evident that what impels one community to behave in the way it does, may be firmly lodged in its political ethos and ultimately in its ethnic value imbuement and idiosyncratic loyalties rather than anything else. To this extent then, it may rightly be argued that the display of any democratic instinct within a tribal boundary or setting, is really the critical overt and proximate demonstration of how that community wishes to be perceived and treated.
Indeed, this is one area that is very sensitive because it involves the expression of the externality (external reality) and basically conveys the value image and all the lurking ingredients of value motivations. In essence, the democratic expression or manifestation is really nothing less than the assertiveness of values in the external world or, as Plato rightly pointed out: virtue once externalized is virtue in action meaning thereby that it will also manifest itself in a variety of ways including democratic behaviour.
Democratic assertiveness eventually manifesting itself as the people's culture whether confined to tribal or ethnic perceptions, seems to entail a curious emotional resolve and sometimes a reckless characteristic whenever it is extended to others outside its natural social gamut. An adequate, early and opportune realization of this as far as the Commission's work goes, should, in my view, forestall possibilities of grievances and interminable grumbles from communities purporting to be ignored or sidelined.
Again in my candid opinion, this is one area, albeit intractable and elusive in terms of placating and allaying anxieties, that need not be mind-
boggling in its pragmatic appraisal and pacification since each community can be prevailed upon to acknowledge the practical futility as well as the social and political contradictions that may ensue if each community insists on the wholesale adoption of its democratic culture package. Indeed, through rational and compassionate persuasion (or is it elegant brinkmanship?) it should not be too difficult to inject a relatively diffusible sense of give and take among the stakeholders for the sake of social compromise and equitable deal.
The choice of such utilizable democratic principles, in my view, should strictly be made to follow what may be regarded as the ritualistic utilitarian criterion and strictly in the spirit of John Stuart Mill's contention that the only justifiable criterion of any virtue (and in this case democratic practice or virtue in action) must lie in its utility. This is really to mean that where some democratic culture available within one community may be found to serve well the rest of the Kenyan society particularly in its declared objectives of attaining social and political reconciliation and harmony, it could be considered for adoption and eventual incorporation into the constitutional document. Indeed good judgment and other patriotic considerations should be exercised by the Commission to take this bold gamble on behalf of the corporate Kenyan society.
PART VI
Culture of Respecting the Constitution
Finally we come to the issue of cultivating the culture of respecting the constitution which, to me, is really nothing but a truistic reiteration for several reasons: one, the whole idea of a constitution and its existence must presuppose some vague or elaborate state of the meeting of the minds which freely decree an arrangement that can regulate the affect the people's lives and social conduct and other interactive processes going on between them. To this extent then, it may be superfluous to even suppose that such freely entered agreement could be questionable in terms of its adherence and commitment to it.
The above ironical expectation, it would seem to me, makes sense only on some vague hypothetical grounds and subjunctively so but hardly on any spontaneous or unequivocal grounds. What this in essence means is that where the constitution is written as an unwavering document reflective of the people's will, it cannot ideally speaking envisage a situation of hypotheticality or conditionality amounting to 'if this then that' situation. Its relative finality as a document should never be made to depend on the people's fickle moods or expedient desires or idiosyncratic preferences. Again,it should excel as a document of relative finality that, presumptively speaking, has taken account of the people's desires, aspirations and projections over a reasonable period of time.
The second reason why the constitution should claim an automatic respect and obedience would seem to lie in the fact that this document is no ordinary document but a special and unique document in the sense that it has invariably to pose as a subsumption of everyone's will now regarded as culminating in an objective instrument called covenant.