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The East African : Sep 1st 2014
18 The EastAfrican OPINION AUGUST 30 - SEPTEMBER 5, 2014 PUBLISHED WEEKLY BY THE NATION MEDIA GROUP Constitutionalism in EA at the c≥oss≥oads The East African Community has earned praise as the most progressive of all the five economic blocs on the continent, but unfortunately member states don’t seem to get it right when reforming institutions of governance. Right now, lawmaking in the region is at a cross- roads. We have a situation where incumbents not only manipulate the views of the public on the type of constitution they want, but go the whole hog to ensure self-preservation. Except for Tanzania, that is in the process of overhauling its constitution, and Kenya, which is now struggling to implement an ambitious document, the rest of the East African partner states — Uganda and Burundi — have to deal with situations where incumbents change or attempt to change the constitution to cling to power beyond their designated terms or do away with term limits altogether. For a start, Kenya’s Constitution, promulgated four years ago, was a product of compromise and accommodation of different interests. Some experts have argued that it was actually a ceasefire agreement after the 2007 post-election violence and that Kenyans voted for a new Constitution out of fear that failure to produce one as per the Agenda Item 4 negotiated by Kofi Annan could have resulted in war. Now, Kenyans have a situation where they are being blackmailed by politicians who amend the Constitution to suit their whims. Members of Parliament, Governors and County Assembly Representatives are now taking advantage of some lacunae in the negotiated document to advance their selfish interests. Tanzania has a chance of learning from the mis- takes of the other partner states by focusing on pertinent issues like the state of the Union, the land tenure system and the structure of governance. In Uganda, President Yoweri Museveni in 2005 coerced parliament into removing the term limit on the basis that having restored law and order in the country after constant political instability for 24 years since the Pearl of Africa gained Independence in 1962, the country would degenerate into chaos without him. Now, Western Youth MP Gerald Karuhanga is agitating for a return of the term limit but Uganda watchers are saying that it is a futile effort given Museveni’s firm grip on the Ugandan psyche. The neighbouring Rwanda could be forced to amend its Constitution should President Paul Kagame — having been credited for resurrecting the country after the 1994 genocide — decide to seek a third term. In Burundi, President Pierre Nkurunziza’s fairly obvious intention to change the Constitution to run for a third term after his constitutional term ends in 2015 is raising prospects of a return to civil war. In 2005, President Nkurunziza inspired hope among Burundians fatigued by 13 years of civil war. But now, his desire to go against the Arusha Agreement that restored peace in Burundi could well taint his legacy. A PUBLICATION OF THE NATION MEDIA GROUP LINUS GITAHI: Chief Executive Officer TOM MSHINDI: Acting Editorial Director PAMELLA SITTONI: Managing Editor Nation Centre, Kimathi Street, P.O. Box 49010-00100 G.P.O. Nairobi. Tel. 3288000, 2221222, 337710, Fax 214531, 213946. E-mail: email@example.com © Nation Media Group Armies in West Africa just drop their guns and run when they see ‘Islamic’ militants.” Cha≥les Onyango-Obbo S ome thing strange — and terrible too — is happening to the business of soldiering, war, and general killing. First, armies in West Africa just seem to drop their guns and run for the sand dunes (in Mali), or the tall grass (in Nigeria) when confronted by “Islamic” militants, themselves a new type of rebel. In one of many such incidents, in May They are running away not because they are cowards, but because their relationship with the state is changing Malian soldiers fled the northern town of Kidal after heavy gun battles with Tuareg separatists. Last week, about 500 Nigerian troops hightailed into neighbouring Cameroon after clashes with Boko Haram militants in Borno State. But perhaps the most infamous military collapse of recent times came from Iraq in June, when 30,000 government troops in the northern city of Mosul, with sophisticated American-supplied weapons, turned and took off when confronted by just 800 One cuts you≥ head o≠, the othe≥ won’t pay you Islamic State militants! Rebels and militants have changed their game; they have become more ruthless, and thrown away the book on fair treatment of prisoners of war. Islamic State executes its prisoners in the most gruesome way, and then posts the video on the Internet. A video released on the weekend by Boko Haram keeps to the same script. It shows executed captives, and in some scenes its men are seen beating prisoners to death with shovels. POWs Let’s get this clear; war of any sort is horrible, as is being a POW. However, the treatment of prisoners of war tells a lot about their captors. During World War II, the Japanese used forced civilian labour and Allied prisoners to build the BurmaSiam Railway, a 415-kilometre line between Bangkok, in Thailand, and Rangoon in Burma. It was also called the Death Railway for a good reason — nearly 90,000 Asian civilian labourers and Allied POWs died building it. So, while both Boko Haram and Islamic State talk of setting up caliphates, they are not conventional state builders. They have no plans of building underground railways. But perhaps even more concerning are the soldiers in countries like Mali and Nigeria who are paid to fight for the taxpayers. They are running away from barefoot- Katiba is fou≥; should we ≥ejoice o≥ mou≥n? desecration? Those who’ve learnt to temper their A enthusiasms — who pride themselves on “growing up,” ”moving on” and being “realistic”—urged celebration. They take the long view, holding this is “wisdom.” In their view, what’s become of our Katiba is a “natural” settling-in process. That all will get better with time, without any of us having to do anything about it. Those with integrity, however — who deplore the sick compromises and spinelessness all around us, whether in the personal, political or professional realms — were in mourning. They are not interested in the long view, holding that we should measure ourselves only by our own potential in the here and now. In their view, what’s become of our Katiba results from the struggle to maintain the status quo by our moribund civil service and their “tenderpreneurs.” And worse, the struggle to reverse the Katiba’s gains by our political leadership. The arguments for mourning? The actions of our executive — con- tinually speaking out of both sides of its mouth. Its issuance of unconstitutional administrative orders on, for example, the place of the provincial administration. Its overriding and undermining of constitutional bodies through, for example, delayed appointments to the Kenya National Human Rights Commission and ugust 27 marked our Constitution’s fourth birthday. Should we have celebrated its achievements or mourned its ongoing the National Cohesion and Integration Commission or the tug-of-war between the Ministry of Lands and the National Land Commission. Its ignoring decisions and orders from constitutional bodies and the judiciary. Its utilisation of the Attorney-General with respect to payments on Anglo-Leasing. Its utilisation of the Ministry of Foreign Affairs to advance the personal ends and interests of its members through the African Union and the International Criminal Court. Then there are the actions of our leg- islature. Its failure to respect the Constitutional Implementation Commission on supporting legislation. Its delays in pass- Our Katiba is being chipped away at. Soon we will have nothing left except its form, depleted of any substance ing supporting legislation — shifting, for example, the deadline for passing the Public Audit, Public Procurement, Asset Disposal and Public Services Bills from this August to next March. Its tabling and passing of blatantly unconstitutional legislation — with respect, for example, to the National Police Service Commission, the County Development Boards, civil society and the media. In short, both the executive and the legislature are complicit in ensuring the most important causes of conflict our Katiba was meant to address ed rebels not because they are cowards, but because their relationship with the state is changing. In Nigeria, when military wives protest- ed, demanding that the government supply their husbands with good weapons to fight Boko Haram, one could sense that the militants had the advantage. Africa’s largest economy, Nigeria can’t kit out its army well enough to fight the militants. Nigeria is not unique. Military camps — and police barracks — in many parts of Africa are in a terrible state. The money to build decent housing for police and troops is allocated in national budgets every year, but is stolen by the big men. There have been reports of soldiers in some African countries buying their own uniforms from the second-hand clothes market! In Iraq, former prime minister Nouri al-Maliki, presided over a very corrupt regime, and had dismantled the professional army leadership, stuffing it with his cronies and loyalists. The rest of the soldiers weren’t willing to die for them. So we are seeing a double crisis — of thieving sectarian regimes that patriots aren’t willing to defend, and rebels and militants who are killing off patriots without a plan for building for tomorrow. Cha≥les Onyango-Obbo is edito≥ of Mail & Gua≥dian Af≥ica (mgaf≥ica.com). Twitte≥:@cobbo3 Do we deplore the sick compromises and spinelessness all around us?” L. Muthoni Wanyeki never will be addressed. The talk is smooth. Each little clawback seems innocuous on its own. But all the little clawbacks add up. Our Katiba is being chipped away at. Soon we will have nothing left except its form, depleted of any substance. Why is this happening? The continui- ties from the past are clear — within the civil service and their tenderpreneurs, most of whom come from the ranks of political leadership, whether in government or the supposed political opposition. And the opposition is wrong; the problem is no longer structural, it has to do with agency. The old structural solution to problems of agency was, in fact, the Katiba. The idea being that structure could constrain and shape agency. But structure is clearly not constraining agency. The question then is, what will? We do, in this sense at least, have to “move on.” From a focus on norms and institutions to a focus on accountability and outcomes. L. Muthoni Wanyeki is Amnesty Inte≥national’s ≥egional di≥ecto≥ fo≥ East Af≥ica, cove≥ing East Af≥ica, the Ho≥n and the G≥eat Lakes.
Aug 25th 2014
Sep 8th 2014