Ethnicity, Nationhood and Pluralism: Kenyan Perspectives Published by the Global Centre for Pluralism, Ottawa c/o The Delegation of the Ismaili Imamate, 199 Sussex Drive, Ottawa, Ontario, K1N 1KB, Canada Telephone +1 613-241-2532 [email protected] www.pluralism.ca and The Katiba Institute, Nairobi Rose Avenue, Hurlingham, PO Box 26585-00100, Nairobi Telephone: +254 (0) 20 271 2801 [email protected] www.katibainstitute.org Published September 2013 ©The publishers The moral rights of the authors are asserted Designed by Zand Graphics Ltd., PO Box 32843 - 00600, Nairobi, Kenya Printed by Colorprint Ltd., P O Box 44466 - 00100. Nairobi, Kenya ISBN No. Ethnicity, Nationhood and Pluralism: Kenyan Perspectives Edited by Yash Pal Ghai & Jill Cottrell Ghai Global Centre for Pluralism, Ottawa Katiba Institute, Nairobi iv ACKNOWLEDGEMENTS The editors acknowledge with great gratitude the assistance of various organisations and individuals in facilitating the preparation and publication of this book. The Global Centre for Pluralism and the Katiba Institute have sponsored the publication. The Canadian High Commission in Kenya hosted the roundtable at which some of the ideas explored in this book were fi rst presented and analysed. Duncan Okello provided a most careful and useful critique of the manuscript. Beverly Boutilier read and commented on the entire manuscript. Waikwa Wanyoike commented on Chapter 6 and took the general responsibility to see the manuscript through the printing process. Zahid Rajan, of Zand Graphics, prepared it for publication. John McNee took a keen interest in the progress of the book and has kindly written the foreword. v CONTENTS Acknowledgments iv Foreword vi John McNee Chapter 1 1 Introduction Yash Pal Ghai and Jill Cottrell Ghai Chapter 2: 21 Memory, Identity and Pluralism in Kenya’s Constitution Building Process Zein Abubakar Chapter 3: 47 Pluralism, Ethnicity and Governance in Kenya Karuti Kanyinga Chapter 4: 75 Ethnicity, Nationhood and Pluralism: 2010 Constitution Yash Pal Ghai Chapter 5: 107 Ethnicity, Pluralism and 2013 Elections Jill Cottrell Ghai and Yash Pal Ghai Chapter 6: 137 Interpreting the Constitution: Balancing the General and the Particular Yash Pal Ghai Consolidated Bibliography 171 Notes on contributors 177 vi FOREWORD The Global Centre for Pluralism is pleased to support the publication of Ethnicity, Nationhood, and Pluralism: Kenyan Perspectives edited by Yash Ghai and Jill Cottrell Ghai and published by the Katiba Institute, a civil society organization in Nairobi dedicated to the implementation of Kenya’s 2010 constitution. The book – which features papers by Zein Abubakar, Karuti Kanyinga, Yash Pal Ghai and Jill Cottrell Ghai emerged from a December 2011 roundtable in Nairobi organized for the Centre by the Katiba Institute and hosted by the Canadian High Commission. The meeting brought together civil society and other leaders who graciously shared their thoughts on the state of pluralism in Kenya and the Centre’s potential role in supporting the country’s exciting new constitutional commitment to diversity and unity as the twin pillars of nation building. Kenya is not unique in the challenges it faces. Virtually every society in the world is characterized by some form of diversity, whether ethnic, religious or cultural. History shows us that diversity and difference are essential parts of the human condition. Even so, all too often diversity and division are confl ated with tragic results. But violent confl ict between people of different backgrounds and beliefs is not inevitable. How we perceive and manage difference is a matter of choice. A commitment to pluralism requires systematic effort across all sectors of society. Building an ethic of respect – for diversity, for difference, for the achievement and outcomes of compromise – is hard work, but the results are worth it. Respect for diversity enriches every aspect of society by enabling each person – male and female – to realize his or her full potential as a citizen and by ensuring that public resources are equally accessed and shared. Founded by His Highness the Aga Khan in partnership with the Government of Canada, the Global Centre for Pluralism is headquartered in Ottawa. The decision to locate the Centre in Canada is no accident, for the Canadian experience of pluralism shows us that diversity, when valued and well managed, can be a source of common good. vii One of the world’s most ethnically diverse societies, Canada is also one of its most peaceful and prosperous. Founded in 1867 as a bi-cultural nation with an Anglo-Celtic majority, a sizable French minority, and a diverse indigenous population, over the last half century Canada has transformed itself – through constitutional reform and deliberate policy choices – into a multicultural and multinational society. Today, although challenges remain, Canadians view their diversity as a fundamental basis of unity and a source of immense national pride. Although the Canadian experience is compelling, it is not a simple template for other societies to follow. There is no one-size-fi ts-all approach to pluralism. History matters. Every country must forge its own path, rooted in its own aspirations and starting where it stands. In the wake of the post-election violence of 2007-08, Kenyans have demonstrated tremendous resiliency, but with a new constitution to implement, the country now stands at a crossroads. The time has come for Kenyans and their political leaders to choose. Will the country continue along the same dead-end road of ethnic competition and ethnic politics, or will Kenyans forge a new path aided by the mechanisms of choice and compromise defi ned by their new basic law? The papers included in this volume highlight some of the experiences and choices that have shaped Kenya as a nation to date. They reveal many challenges, but they also show us that change is possible. Choosing pluralism is never easy. Deciding to respect rather than fear difference requires a sea change in thinking and behaviour. Through their adoption of the 2010 constitution, Kenyans have already made a choice. They have already illuminated a different path. The next step is to start the journey. As the founder of the Global Centre for Pluralism, His Highness the Aga Khan, has remarked, “The world we seek is not a world where difference is erased, but where difference can be a powerful force for good, helping us to fashion a new sense of cooperation and coherence in our world, and to build together a better life for all.” John McNee Secretary General Global Centre for Pluralism 1 1 INTRODUCTION Yash Pal Ghai and Jill Cottrell Ghai This volume emerged from a Round Table on Pluralism in Kenya held in Nairobi in December 2011, and includes written versions of presentations made on that occasion, a brief summary of discussion, and two additional papers to update the material. The Round Table was organised by the Canadian High Commission (Kenya) on behalf of the Global Centre for Pluralism, based in Ottawa, and the Katiba Institute. The Centre was established by His Highness the Aga Khan in partnership with the Government of Canada to advance understanding of and global commitment to pluralism – defi ned simply as an ethic of respect that seeks to recognize and enable diversity as a source of common good. The Institute was set up by Yash Ghai, Jill Cottrell Ghai and Waikwa Wanyoike to promote knowledge of and implementation of Kenya’s new Constitution (adopted in August 2010). A basic objective underlying the Constitution is respect for and promotion of diversity. The complementarity of the Centre’s and the Institute’s aims led to their joint sponsorship of the Round Table. Pluralism Pluralism refers to a particular kind of policy advocated for adoption in multi-ethnic or multi-cultural states. Due to conquests, decolonisation, and immigration, most countries today consist of groups or communities who are distinguished from others by their language, religion, culture, history, or the region which they inhabit. The mode of co-existence of these communities has posed one of the greatest challenges of contemporary times. Over the last half century or so, more people have been discriminated against, maimed, killed or displaced from their homes due to confl icts between communities than due to inter-state wars. In many countries numerical or social minorities have been marginalised and victimised, and denied participation in the organs of the state and access to its services. 2 • Ethnicity, Nationhood and Pluralism: Kenyan Perspectives The international community has responded to the oppression of minorities and confl icts between groups in a number of ways. It has promoted the adoption of new norms of group rights, for indigenous peoples and other minorities, supplementing the traditional regime of human (individual oriented) rights. It has intervened to stop internal wars and facilitated resolution of confl icts by facilitating constitutional settlements. Considerable scholarship has developed around the re-organisation of the state to accommodate the competing claims of groups and communities. In broad terms, it can be said that as a result of these interventions and studies, there has been a major reconsideration of the nature and role of the state, particularly in relation to groups, and not merely individual citizens. In trying to deal with diversity, constitutions increasingly recognise groups, as additional entities to citizens, defi ning the relationship of the state to groups, and sometimes relations between groups. They represent a move away from the hegemony of one ethnic group to the accommodation of all groups, in an attempt to re-defi ne the concept of the “nation”. Within this broad objective, there are variations of approach (discussed in Chapter 4), particularly in the balance between national identity and group identity. Multiculturalism is the term used to defi ne those systems which provide for the constitutional or legal recognition of cultural communities, often as corporate entities, sometimes with a measure of self-government or autonomy in matters closely connected to their culture or religion.