By LUKOYE ATWOLI
Sunday Nation 20 December 2009
The involvement of the International Criminal Court in the investigation on the violence that rocked Kenya following the last General Election has raised quite a storm both within the country and on the African continent as a whole.
At least one Kenyan politician has gone on record to indicate that she believes she is one of those in the ICC’s sights notwithstanding her protestations of innocence.
Since its inception, the court has indicted mostly African leaders for various international crimes, and after the high-profile indictment of the Sudanese President Omar el-Bashir, accusations were made that the court is a neo-colonial creature aimed at putting Africans in their place.
Similar allegations have been made by Kenyan politicians who have lately taken to urging Kenyans to seek a “homegrown” solution to our problems.
After initially depicting the ICC as too slow to take any meaningful action against perpetrators of last year’s violence, the politicians are now dismissing the court and its Chief Prosecutor, Mr Moreno-Ocampo, as an intolerable intrusion into our sovereign affairs.
The African Union, whose leadership is made up of many potential ICC indictees, has made it clear that it does not support the ICC’s attempts to chastise wayward leaders who commit unspeakable crimes against their own people.
Clearly, a case is being built up to the effect that Africa is being maligned once again as part of a larger conspiracy to recolonise the continent.
It is therefore important for us to examine in some detail this assertion that the ICC unfairly targets African countries. It is true that the most prominent people being pursued for involvement in international crimes hail from the continent.
Indeed, it is true that the ICC has maintained a rather sharp focus on African countries, and is often quick to open investigations whenever an event occurs on African soil.
Many have argued that more developed countries have committed and continue to commit crimes worse than any they may pin on an African tyrant.
The invasion of Iraq by Western powers and the conflict between Israel and Palestinians are commonly cited as good hunting grounds for war criminals that have been neglected by the ICC in favour of the relatively easy pickings in Africa.
The question that proponents of this argument need to answer is whether the ICC’s attention on Africa is actually unfair.
When one commits a crime and is arraigned in a court of law, he cannot use the argument that his prosecution is unfair because many others commit the same crime and are not similarly prosecuted.
The commission of the crime alone is sufficient reason for one to be prosecuted and, if found guilty, to bear the punishment prescribed in law.
Politicians who are arguing that the ICC is targeting Africans unfairly are therefore unwittingly admitting that Africans are indeed committing crimes against humanity and other international crimes that warrant the attention the ICC is giving them.
The ICC’s presence would not matter in a country that is running its affairs peacefully according to its own laws as well as international law.
A country with a functioning legal justice system that fairly and consistently punishes all wrong-doers would have nothing to worry about even if the ICC prosecutor set up camp in its back yard.
The reason African despots are expressing such sentiments about the ICC is that many of them are guilty. Many have presided over de jure and de facto dictatorships whose modus operandi has involved actions that would land them in trouble in any civilised society.
Others have acquired power through dubious means, and to remain in charge, they have had to use inordinate amounts of force that pass the threshold of crimes against humanity.
It is not uncommon to hear African politicians referring to African peculiarities as justification for the authoritarian rule they subject their people to.
Indeed, many ordinary citizens agree with the view that Africans need a firm hand at the till in order to stabilise the nation, with reference being made to “benevolent dictators” and “gentle tyrants”.
This kind of thinking only serves to perpetuate the image of an African as some sort of savage who needs a certain amount of violence to control. There is no reason this same thinking would not be applied to Africans living in the Diaspora.
It is my contention therefore that it is African countries that continue to attract the attention of the ICC through actions of leaders that put us to shame on the international stage.
Instead of accusing the international community of unfair intrusion into our sovereign business, it is imperative that we clean up our politics and conduct ourselves in ways that do not invite such intrusion.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Monday, December 21, 2009
Tuesday, December 15, 2009
Insurance companies must stop discrimination
By LUKOYE ATWOLI
Sunday Nation 13 December 2009
John K (not his real name) suffers from a condition known as Major Depressive Disorder. This is characterised by periods of intensely low mood and loss of interest in usual activities, as well as poor sleep, poor appetite, impaired concentration and memory, feelings of hopelessness and worthlessness and even suicidal thoughts and plans.
In extreme circumstances, patients with depression attempt suicide. John is also a responsible family man. He has taken out medical insurance for his entire family in order to ensure that sudden illnesses do not interfere with the family’s financial goals as often advised by the legion of financial advisers.
His cover is provided by a prominent insurance company on whose board sits many prominent Kenyans both in the health sector and in the legal fraternity.
Two weeks ago, John went into an episode of severe depression. He could not go to work and felt so despondent it was difficult to leave the bed in the morning. He stopped eating and would only take a sip of fruit juice before retiring to bed.
One night, he went into the bathroom as if to relieve himself. When his wife followed him there after he had been there for a while, she found him with a rope around his neck, attempting to kill himself. She managed to cut the rope in the nick of time, and called the neighbours to help her take him to hospital.
He was admitted with the diagnosis of “attempted suicide” and, after being reviewed by a psychiatrist, he was found to have “Major Depressive Disorder” and put on appropriate treatment. A few days later he had improved sufficiently to start making arrangements for the payment of his hospital bills.
That is when he was hit by the shocker to the effect that the insurance company had written to the hospital informing them that both “attempted suicide” and “any mental illness, including depression” were “exclusions” under his medical cover. He would have to foot the bill himself.
Suffice it to say that his condition worsened after he received this information, and he stayed longer in hospital than he would otherwise have. Further, upon discharge, he stopped paying his insurance premiums, and thus lost the cover completely.
It is an established fact that a significant proportion of Kenyans will suffer one mental illness or another in their lifetime. A recent study carried out by Professor Ndetei and colleagues in Nairobi and surrounding areas revealed that approximately half of the people who visit hospitals for non-psychiatric complaints have mild to severe depressive illness.
The multifarious “exclusions” by insurers mean that despite having medical cover, most of these people will be compelled to pay for mental health services out of pocket.
This alone is sufficient ground for human rights and other activists to begin beating war drums and asking the government to intervene and improve this state of affairs.
However, the bigger tragedy is that the supposed “exclusions” are in fact against both the letter and spirit of the law. Section 46 of the Mental Health Act (1989) expressly prohibits insurance companies from making exclusions based on mental illness.
It reads: “46. (1) Every person in Kenya shall be entitled, if he wishes, to insurance providing for his treatment as a person suffering from mental disorder and no insurance company shall make any insurance policy providing insurance against sickness, which excludes or restricts the treatment of persons suffering from mental disorder;
“(2) An insurance company which makes any insurance policy which expressly excludes or puts restrictions on the treatment of any person suffering from mental disorder shall be guilty of an offence.”
One need not be a lawyer to see that this section clearly prohibits creation of the infamous “exclusions” with regard to mental illness! The fact that many mentally ill persons and their families are unaware that there is such a provision in the law should not be a reason for insurance companies to continue fleecing them mercilessly.
As insurance companies continue flouting this clear provision, they make an already bad situation worse for the mentally ill and their families. A clear relationship has been demonstrated between mental illness and poverty.
The mentally ill have lower incomes as a result of declining productivity, and the little available resources are channelled towards paying for their treatment.
It has been said that societies are (or should be) judged by the way they treat their most vulnerable members. This wilful discrimination by insurance companies must stop, and the mentally ill must be assured of the same level of care as those with other illnesses.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine www.lukoyeatwoli.com
Sunday Nation 13 December 2009
John K (not his real name) suffers from a condition known as Major Depressive Disorder. This is characterised by periods of intensely low mood and loss of interest in usual activities, as well as poor sleep, poor appetite, impaired concentration and memory, feelings of hopelessness and worthlessness and even suicidal thoughts and plans.
In extreme circumstances, patients with depression attempt suicide. John is also a responsible family man. He has taken out medical insurance for his entire family in order to ensure that sudden illnesses do not interfere with the family’s financial goals as often advised by the legion of financial advisers.
His cover is provided by a prominent insurance company on whose board sits many prominent Kenyans both in the health sector and in the legal fraternity.
Two weeks ago, John went into an episode of severe depression. He could not go to work and felt so despondent it was difficult to leave the bed in the morning. He stopped eating and would only take a sip of fruit juice before retiring to bed.
One night, he went into the bathroom as if to relieve himself. When his wife followed him there after he had been there for a while, she found him with a rope around his neck, attempting to kill himself. She managed to cut the rope in the nick of time, and called the neighbours to help her take him to hospital.
He was admitted with the diagnosis of “attempted suicide” and, after being reviewed by a psychiatrist, he was found to have “Major Depressive Disorder” and put on appropriate treatment. A few days later he had improved sufficiently to start making arrangements for the payment of his hospital bills.
That is when he was hit by the shocker to the effect that the insurance company had written to the hospital informing them that both “attempted suicide” and “any mental illness, including depression” were “exclusions” under his medical cover. He would have to foot the bill himself.
Suffice it to say that his condition worsened after he received this information, and he stayed longer in hospital than he would otherwise have. Further, upon discharge, he stopped paying his insurance premiums, and thus lost the cover completely.
It is an established fact that a significant proportion of Kenyans will suffer one mental illness or another in their lifetime. A recent study carried out by Professor Ndetei and colleagues in Nairobi and surrounding areas revealed that approximately half of the people who visit hospitals for non-psychiatric complaints have mild to severe depressive illness.
The multifarious “exclusions” by insurers mean that despite having medical cover, most of these people will be compelled to pay for mental health services out of pocket.
This alone is sufficient ground for human rights and other activists to begin beating war drums and asking the government to intervene and improve this state of affairs.
However, the bigger tragedy is that the supposed “exclusions” are in fact against both the letter and spirit of the law. Section 46 of the Mental Health Act (1989) expressly prohibits insurance companies from making exclusions based on mental illness.
It reads: “46. (1) Every person in Kenya shall be entitled, if he wishes, to insurance providing for his treatment as a person suffering from mental disorder and no insurance company shall make any insurance policy providing insurance against sickness, which excludes or restricts the treatment of persons suffering from mental disorder;
“(2) An insurance company which makes any insurance policy which expressly excludes or puts restrictions on the treatment of any person suffering from mental disorder shall be guilty of an offence.”
One need not be a lawyer to see that this section clearly prohibits creation of the infamous “exclusions” with regard to mental illness! The fact that many mentally ill persons and their families are unaware that there is such a provision in the law should not be a reason for insurance companies to continue fleecing them mercilessly.
As insurance companies continue flouting this clear provision, they make an already bad situation worse for the mentally ill and their families. A clear relationship has been demonstrated between mental illness and poverty.
The mentally ill have lower incomes as a result of declining productivity, and the little available resources are channelled towards paying for their treatment.
It has been said that societies are (or should be) judged by the way they treat their most vulnerable members. This wilful discrimination by insurance companies must stop, and the mentally ill must be assured of the same level of care as those with other illnesses.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine www.lukoyeatwoli.com
Sunday, December 6, 2009
Cholera deaths reflect the state of our nation
By LUKOYE ATWOLI
Sunday Nation 06 December 2009
Cholera is a disease caused by a bacterium spread mainly through faecal contamination of water. It is characterised by profuse diarrhea and rapid loss of body water, and is summarily fatal if untreated.
Interestingly, treatment for cholera consists of intake of copious amounts of clean water mixed with salt and sugar, a mixture that should be available at the most basic level in this country.
Hundreds of Kenyans have recently lost their lives to this disease, and many more continue to be at risk. The ministries of Health have reported deployment of medical personnel to all affected areas in an attempt to control the scourge, but new cases keep popping up in all corners of the country.
It is a hallmark of our times that even as we raucously debate a new constitution that guarantees a right to health, we continue to lose Kenyans to this primitive disease whose control is so painfully simple that it would be correct to term it a disease of absolute poverty.
For instance, the last outbreak of Cholera in the United Kingdom was sometime in the 19th Century, and the study of epidemiology owes its existence to the control of this particular outbreak.
Outbreaks of Cholera and other diarrheal diseases are practically unheard of in countries that have improved their waste disposal systems and ensured a steady supply of clean drinking water for their citizens.
After days in denial, the Public Health and Sanitation minister was heard lamenting that all it would take to control the disease is for Kenyans to “decide to live hygienically”.
She went on to deride the behaviour of poor Kenyans who decide to “go anyhow to the bush” and proceed to drink water contaminated by their own infected faeces.
The minister’s words are eerily evocative at this time in our development, and a brief lesson in history would be useful for the minister and this government.
At the height of the French revolution in the 18th Century, Marie Antoinette, then Queen of France, reportedly uttered the now immortalised words “Let them have cake”, when she heard hungry peasants demonstrating outside her palace over lack of “bread”. She paid the ultimate price for this alleged misstatement soon after this.
The conditions attending the period around the French Revolution are no different from what Kenya is going through today, and indeed a close reading of the French history of the time sounds like a rehash of Kenya’s present, complete with indecisive, lethargic leaders and atrocious conditions for the common citizen.
Even the clamour for a new constitution is reminiscent of the French “Declaration of the Rights of Man and of the Citizen” that was promulgated during the revolution and stands today as one of the key planks of human rights theory.
Kenyan politicians stand the risk of being exposed to the literal and figurative guillotine of citizen action if they continue making such careless statements and ignoring the acute needs of the citizenry.
Inability to supply clean drinking water to a majority of the population is an indictment on the state of our government’s priorities. Every single death that is attributed to Cholera means that our water and sanitation infrastructure is not up to scratch, and we cannot stake a claim to international greatness while still losing people to an illness whose cure is clean water mixed with salt and sugar!
Instead of continuing to insult the citizen with exhortations to choose hygiene over poor sanitation, the government must fulfill its responsibility to its citizens and endeavour to improve the water and sanitation situation in this country.
You cannot ask a poor person without access to adequate supplies of clean drinking water to “decide” to be hygienic when it is just not possible! It is also insulting to insist that a poor Kenyan boils the little dirty water available to him when he has no access to fuel to cook his food, let alone boil water.
If the government wants the citizen to “decide” to live “hygienically” as so graphically put by the Health minister, it must provide a real choice.
It must ensure supply of adequate amounts of clean drinking water to all its citizens. It must work to ensure that fuel is available and affordable to all people. Health facilities must be in close proximity to all Kenyans so that those with more severe infections have access to a facility where they may get intravenous fluids and even antibiotics as necessary.
As long as Kenyans continue dying of a disease caused by poor hygiene and whose treatment is mostly clean water, we must ask ourselves if we are upto the challenges of the new millennium and on track to achieve the Millennium Development Goals and our own vision 2030.
Dr Lukoye Atwoli is a Consultant Psychiatrist and Lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Sunday Nation 06 December 2009
Cholera is a disease caused by a bacterium spread mainly through faecal contamination of water. It is characterised by profuse diarrhea and rapid loss of body water, and is summarily fatal if untreated.
Interestingly, treatment for cholera consists of intake of copious amounts of clean water mixed with salt and sugar, a mixture that should be available at the most basic level in this country.
Hundreds of Kenyans have recently lost their lives to this disease, and many more continue to be at risk. The ministries of Health have reported deployment of medical personnel to all affected areas in an attempt to control the scourge, but new cases keep popping up in all corners of the country.
It is a hallmark of our times that even as we raucously debate a new constitution that guarantees a right to health, we continue to lose Kenyans to this primitive disease whose control is so painfully simple that it would be correct to term it a disease of absolute poverty.
For instance, the last outbreak of Cholera in the United Kingdom was sometime in the 19th Century, and the study of epidemiology owes its existence to the control of this particular outbreak.
Outbreaks of Cholera and other diarrheal diseases are practically unheard of in countries that have improved their waste disposal systems and ensured a steady supply of clean drinking water for their citizens.
After days in denial, the Public Health and Sanitation minister was heard lamenting that all it would take to control the disease is for Kenyans to “decide to live hygienically”.
She went on to deride the behaviour of poor Kenyans who decide to “go anyhow to the bush” and proceed to drink water contaminated by their own infected faeces.
The minister’s words are eerily evocative at this time in our development, and a brief lesson in history would be useful for the minister and this government.
At the height of the French revolution in the 18th Century, Marie Antoinette, then Queen of France, reportedly uttered the now immortalised words “Let them have cake”, when she heard hungry peasants demonstrating outside her palace over lack of “bread”. She paid the ultimate price for this alleged misstatement soon after this.
The conditions attending the period around the French Revolution are no different from what Kenya is going through today, and indeed a close reading of the French history of the time sounds like a rehash of Kenya’s present, complete with indecisive, lethargic leaders and atrocious conditions for the common citizen.
Even the clamour for a new constitution is reminiscent of the French “Declaration of the Rights of Man and of the Citizen” that was promulgated during the revolution and stands today as one of the key planks of human rights theory.
Kenyan politicians stand the risk of being exposed to the literal and figurative guillotine of citizen action if they continue making such careless statements and ignoring the acute needs of the citizenry.
Inability to supply clean drinking water to a majority of the population is an indictment on the state of our government’s priorities. Every single death that is attributed to Cholera means that our water and sanitation infrastructure is not up to scratch, and we cannot stake a claim to international greatness while still losing people to an illness whose cure is clean water mixed with salt and sugar!
Instead of continuing to insult the citizen with exhortations to choose hygiene over poor sanitation, the government must fulfill its responsibility to its citizens and endeavour to improve the water and sanitation situation in this country.
You cannot ask a poor person without access to adequate supplies of clean drinking water to “decide” to be hygienic when it is just not possible! It is also insulting to insist that a poor Kenyan boils the little dirty water available to him when he has no access to fuel to cook his food, let alone boil water.
If the government wants the citizen to “decide” to live “hygienically” as so graphically put by the Health minister, it must provide a real choice.
It must ensure supply of adequate amounts of clean drinking water to all its citizens. It must work to ensure that fuel is available and affordable to all people. Health facilities must be in close proximity to all Kenyans so that those with more severe infections have access to a facility where they may get intravenous fluids and even antibiotics as necessary.
As long as Kenyans continue dying of a disease caused by poor hygiene and whose treatment is mostly clean water, we must ask ourselves if we are upto the challenges of the new millennium and on track to achieve the Millennium Development Goals and our own vision 2030.
Dr Lukoye Atwoli is a Consultant Psychiatrist and Lecturer at Moi University’s School of Medicine
www.lukoyeatwoli.com
Sunday, November 29, 2009
Why are politicians dead set against an executive PM?
By LUKOYE ATWOLI
Sunday Nation 29 November 2009
As the clock ticks towards the end of the stipulated period for comments on the harmonised draft constitution, it is becoming clear that any erudite discussion by ordinary Kenyans faces insurmountable obstacles.
Politicians are already tainting the debate with non-issues in order to obfuscate matters and leave them with the real power to decide what goes into the constitution and what does not.
One argument some have been repeating consistently is that the harmonised draft forces a presidential candidate to run around the country trying to garner 50 per cent plus one vote and 25 per cent of votes in over half the regions only to be rewarded with a practically useless post.
It is difficult to deal with this issue without asking a series of questions in return. For instance, why are people becoming so worked up about a hypothetical candidate who understands the constitution and chooses to follow its provisions to become a “popularly elected president”? If indeed everyone has an equal opportunity to become a leader in this country, why are these politicians so dead set against an “executive” Prime Minister?
Why are these politicians avoiding the issues that are making them fear these positions as proposed in the harmonised draft, and choosing instead to concentrate on the positions themselves? Is it not clear that their fears are driven by the individuals currently holding the positions and those aspiring to hold them, rather than the powers inherent in the positions themselves?
Would they still work themselves into a lather if all the top politicians in Kenya were to rule themselves out of contention at the next elections? Discussion on the executive chapter of the harmonised draft is fast turning into a farcical repeat (in reverse!) of the 2005 referendum, and already some politicians have threatened to campaign against it because it “emasculates” the president and gives the “unelected” prime minister too much power.
Politicians are making singularly uninformed statements such as “nowhere else in the world does a ‘popularly’ elected president not enjoy ‘executive’ power”. Whose interests are they fronting? People are even “popularly elected” to village cattle dip committees, and the only “power” they enjoy is to preside over cattle dip committee meetings.
This debate is clearly not about this draft constitution at all, but about contemporary fears and entrenched prejudices. The terms “president” and “prime minister” in this country have acquired the character of the individuals who have occupied those positions in recent years, and these are the perceptions currently driving the debate.
The prime minister and several other politicians have wisely decided not to trumpet their own opinions concerning the draft in the hope that their supporters will come to their own conclusions. It was, however, reported in the press that the president expressed support for the document. Supporters of President Kibaki and Prime Minister Raila Odinga have chosen to ignore similar counsel and continue to engage in combat.
It is my considered opinion that discussion of any of the specific clauses in the draft constitution is useless in any case. As I have repeatedly argued before, what we need agreement on are the basic principles guiding this nation, and the rest will fall into place.
For instance, we may agree, as implied in the draft, that our tribes are bigger than the nation known as Kenya, and that our first loyalty shall be to our tribes and regions and only finally to Kenya. Conversely, we may agree that we aspire to a greater level of involvement in global affairs and do not desire to be tied down by petty tribal loyalties in our quest for a better life for our citizens.
These should form the basis of any constitution we write. If, on the other hand, we do not agree on any of those basic principles, no amount of debating the clauses in the harmonised draft will result in agreement, for the debate will continue to be duplicitous and full of multi-layered innuendo. The end result will be a rejection of whatever document is presented to Kenyans in a referendum.
Indeed the fact that politicians are already mobilising their supporters to reject the draft on trivial grounds illustrates an attitude that the constitution is about the personal needs of the politicians.
All those Kenyans who are allowing themselves to be led this way by a bunch of irredeemably selfish tribal chiefs should never again waste our time complaining about a “bad” constitution and poor governance after April 2009 comes and goes without any fundamental changes in the country’s constitutional structures.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine: www.lukoyeatwoli.com
Sunday Nation 29 November 2009
As the clock ticks towards the end of the stipulated period for comments on the harmonised draft constitution, it is becoming clear that any erudite discussion by ordinary Kenyans faces insurmountable obstacles.
Politicians are already tainting the debate with non-issues in order to obfuscate matters and leave them with the real power to decide what goes into the constitution and what does not.
One argument some have been repeating consistently is that the harmonised draft forces a presidential candidate to run around the country trying to garner 50 per cent plus one vote and 25 per cent of votes in over half the regions only to be rewarded with a practically useless post.
It is difficult to deal with this issue without asking a series of questions in return. For instance, why are people becoming so worked up about a hypothetical candidate who understands the constitution and chooses to follow its provisions to become a “popularly elected president”? If indeed everyone has an equal opportunity to become a leader in this country, why are these politicians so dead set against an “executive” Prime Minister?
Why are these politicians avoiding the issues that are making them fear these positions as proposed in the harmonised draft, and choosing instead to concentrate on the positions themselves? Is it not clear that their fears are driven by the individuals currently holding the positions and those aspiring to hold them, rather than the powers inherent in the positions themselves?
Would they still work themselves into a lather if all the top politicians in Kenya were to rule themselves out of contention at the next elections? Discussion on the executive chapter of the harmonised draft is fast turning into a farcical repeat (in reverse!) of the 2005 referendum, and already some politicians have threatened to campaign against it because it “emasculates” the president and gives the “unelected” prime minister too much power.
Politicians are making singularly uninformed statements such as “nowhere else in the world does a ‘popularly’ elected president not enjoy ‘executive’ power”. Whose interests are they fronting? People are even “popularly elected” to village cattle dip committees, and the only “power” they enjoy is to preside over cattle dip committee meetings.
This debate is clearly not about this draft constitution at all, but about contemporary fears and entrenched prejudices. The terms “president” and “prime minister” in this country have acquired the character of the individuals who have occupied those positions in recent years, and these are the perceptions currently driving the debate.
The prime minister and several other politicians have wisely decided not to trumpet their own opinions concerning the draft in the hope that their supporters will come to their own conclusions. It was, however, reported in the press that the president expressed support for the document. Supporters of President Kibaki and Prime Minister Raila Odinga have chosen to ignore similar counsel and continue to engage in combat.
It is my considered opinion that discussion of any of the specific clauses in the draft constitution is useless in any case. As I have repeatedly argued before, what we need agreement on are the basic principles guiding this nation, and the rest will fall into place.
For instance, we may agree, as implied in the draft, that our tribes are bigger than the nation known as Kenya, and that our first loyalty shall be to our tribes and regions and only finally to Kenya. Conversely, we may agree that we aspire to a greater level of involvement in global affairs and do not desire to be tied down by petty tribal loyalties in our quest for a better life for our citizens.
These should form the basis of any constitution we write. If, on the other hand, we do not agree on any of those basic principles, no amount of debating the clauses in the harmonised draft will result in agreement, for the debate will continue to be duplicitous and full of multi-layered innuendo. The end result will be a rejection of whatever document is presented to Kenyans in a referendum.
Indeed the fact that politicians are already mobilising their supporters to reject the draft on trivial grounds illustrates an attitude that the constitution is about the personal needs of the politicians.
All those Kenyans who are allowing themselves to be led this way by a bunch of irredeemably selfish tribal chiefs should never again waste our time complaining about a “bad” constitution and poor governance after April 2009 comes and goes without any fundamental changes in the country’s constitutional structures.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine: www.lukoyeatwoli.com
Friday, November 27, 2009
Weaknesses could pose threat to enactment of new law
By LUKOYE ATWOLI
Sunday Nation 22 November 2009
With suitable pomp and pageantry, the harmonised draft constitution of Kenya was finally unveiled in Nairobi on Tuesday. Kenyans have been given 30 days to peruse and debate the draft, and suggest to the Committee of Experts any areas they feel need to be changed or addressed to their satisfaction.
No matter what the pundits, bigots, naysayers and other busybodies say, this country is unlikely to come up with any better draft constitution than the harmonised draft this committee has come up with.
This must not be misconstrued to mean that this is the best possible draft that could be produced in this country. On the contrary, it is not far-fetched to suggest that this draft is singularly unimaginative when it comes to re-engineering the architecture of the state.
For instance, regarding devolution, the draft chose to stick to the current “regions”, succumbing to the ethno-political demagoguery that decreed that some provinces would only be split at the expense of spilt blood despite being large and unwieldy.
The proposed counties also bear an uncanny resemblance to the “Moi” districts, some still carrying the stigmata of failed nomenclature, for instance “Butere/Mumias”!
In the interests of honest debate and consideration of issues, it is wise for us to acknowledge some weaknesses in the Kenyan psyche that will pose a serious threat to the enactment of a new constitution.
One, no matter what is contained in the draft constitution, the majority of Kenyans will not read it, and will rely on their ethno-political warlords to read and interpret it for them.
Despite having the draft in all possible forms short of recruiting personal tutors for each and every citizen and their dog, nobody is going to give it any level of sustained attention.
This was true with the last referendum and it will continue to be true with the current constitutional review process, unless something very fundamental shifts in the Kenyan psyche.
Two, those that attempt to read the document will latch onto one or two issues and be blinded to the rest of the constitution. The religious right will definitely continue beating war drums on such marginal issues as the place of religious courts in the constitution as well as sexual orientation.
Politicians will try to interpret the document in light of the current transitional arrangement, and the positions in the document will be replaced with individual names to see how they fit.
Three, current affairs will continue to taint the view of the draft constitution. Contemporary red herrings such as the Mau forest stand-off, 2012 General Election realignments and post-election violence resentments will heavily taint the interpretation of various provisions in the harmonised draft.
Finally, it would be wise to indicate that no constitution, new or old, is going to save Kenyans from themselves. The success or failure of a new constitutional dispensation will depend on the entrenchment of a new culture of constitutionalism. A system that guarantees a healthy respect of the rule of law is more important than the letter of the law itself.
The biggest failure of the Kenyan state since independence has been the blatant disregard for the law by those that are meant to enforce it, and the phenomenon of “impunity” is firmly anchored in this historical foundation.
At the end of the day, it should be reasonable to agree that as long as the constitution is written by well-meaning citizens with the good of the nation at heart, it does not matter what system of government it proposes or how many levels of devolution it provides for. As long as Kenyans are willing to respect the document and the resultant laws, the constitution will be good enough for the majority.
There is therefore no point wasting a lot of resources subjecting the harmonised draft to scrutiny by the average Joe, who will not bother to read it anyway. It further defeats logic to subject the final draft to a referendum, given that a majority of the voters will be voting for or against a document they will not have read.
Unless the above-listed difficulties are surmounted one way or another, there would remain only one practical solution to this conundrum. The president (or the government) should simply declare a state of emergency, abrogate the current constitution and replace it with the harmonised draft which contains adequate transitional mechanisms as it is. Undesirable sections and provisions will be easily amended later as provided for in the draft.
Any other route to a new constitution stands the risk of being hijacked by entrenched interests.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine. www.lukoyeatwoli.com
Sunday Nation 22 November 2009
With suitable pomp and pageantry, the harmonised draft constitution of Kenya was finally unveiled in Nairobi on Tuesday. Kenyans have been given 30 days to peruse and debate the draft, and suggest to the Committee of Experts any areas they feel need to be changed or addressed to their satisfaction.
No matter what the pundits, bigots, naysayers and other busybodies say, this country is unlikely to come up with any better draft constitution than the harmonised draft this committee has come up with.
This must not be misconstrued to mean that this is the best possible draft that could be produced in this country. On the contrary, it is not far-fetched to suggest that this draft is singularly unimaginative when it comes to re-engineering the architecture of the state.
For instance, regarding devolution, the draft chose to stick to the current “regions”, succumbing to the ethno-political demagoguery that decreed that some provinces would only be split at the expense of spilt blood despite being large and unwieldy.
The proposed counties also bear an uncanny resemblance to the “Moi” districts, some still carrying the stigmata of failed nomenclature, for instance “Butere/Mumias”!
In the interests of honest debate and consideration of issues, it is wise for us to acknowledge some weaknesses in the Kenyan psyche that will pose a serious threat to the enactment of a new constitution.
One, no matter what is contained in the draft constitution, the majority of Kenyans will not read it, and will rely on their ethno-political warlords to read and interpret it for them.
Despite having the draft in all possible forms short of recruiting personal tutors for each and every citizen and their dog, nobody is going to give it any level of sustained attention.
This was true with the last referendum and it will continue to be true with the current constitutional review process, unless something very fundamental shifts in the Kenyan psyche.
Two, those that attempt to read the document will latch onto one or two issues and be blinded to the rest of the constitution. The religious right will definitely continue beating war drums on such marginal issues as the place of religious courts in the constitution as well as sexual orientation.
Politicians will try to interpret the document in light of the current transitional arrangement, and the positions in the document will be replaced with individual names to see how they fit.
Three, current affairs will continue to taint the view of the draft constitution. Contemporary red herrings such as the Mau forest stand-off, 2012 General Election realignments and post-election violence resentments will heavily taint the interpretation of various provisions in the harmonised draft.
Finally, it would be wise to indicate that no constitution, new or old, is going to save Kenyans from themselves. The success or failure of a new constitutional dispensation will depend on the entrenchment of a new culture of constitutionalism. A system that guarantees a healthy respect of the rule of law is more important than the letter of the law itself.
The biggest failure of the Kenyan state since independence has been the blatant disregard for the law by those that are meant to enforce it, and the phenomenon of “impunity” is firmly anchored in this historical foundation.
At the end of the day, it should be reasonable to agree that as long as the constitution is written by well-meaning citizens with the good of the nation at heart, it does not matter what system of government it proposes or how many levels of devolution it provides for. As long as Kenyans are willing to respect the document and the resultant laws, the constitution will be good enough for the majority.
There is therefore no point wasting a lot of resources subjecting the harmonised draft to scrutiny by the average Joe, who will not bother to read it anyway. It further defeats logic to subject the final draft to a referendum, given that a majority of the voters will be voting for or against a document they will not have read.
Unless the above-listed difficulties are surmounted one way or another, there would remain only one practical solution to this conundrum. The president (or the government) should simply declare a state of emergency, abrogate the current constitution and replace it with the harmonised draft which contains adequate transitional mechanisms as it is. Undesirable sections and provisions will be easily amended later as provided for in the draft.
Any other route to a new constitution stands the risk of being hijacked by entrenched interests.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine. www.lukoyeatwoli.com
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