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Is Majimbo Federalism?
Constitutional Debate in a Tribal Shark-Tank

By Peter Kagwanja and Willy Mutunga, The Nation (Nairobi), 20 May 2001

The majimbo debate is finally coming home to roost. This occurs against the backdrop of passage of the Constitution of Kenya Review (Amendment) Bill that legalized part of the merger agreements between the Ufungamano initiative and the [Yash] Ghai Commission on May 8, 2001. What has never become succinctly clear is whether Majimboism-a Swahili word which means "administrative units" or "regions"-is the same as federalism.

A close study of Kenya's history reveals that all constitutional negotiations have been accompanied by clamour for majimboism. It was the central theme of the Lancaster House Constitutional Conference in 1962, ahead of Kenya's independence, and has jinxed the constitutional reform process in the multi-party era. While its proponents are convinced that majimboism is federalism, its critics contend that the system is as far from the known theory and practice of federalism as the earth is from the heavens. This reveals a serious gap in the knowledge of a system that has stalked our political debates for almost four decades.

The Majimbo debate has been kicked off by two senior cabinet ministers: The Ministers in the office of the President, Shariff Nassir and William Ole Ntimama. In a KTN call-in session, Third Opinion (10/05/01), Nassir, called for the return to majimbo "to ensure equitable distribution of resources" after Moi's exit from power. In a paper "The Place of Local Government in a Unitary or Federal Government, Minister Ole Ntimama Minister invoked majimboism to hold back what he evocatively dubbed "majoritarian avalanche."

The paper was presented at a low-key conference on Federalism: Schools of Majimboism, organised by the Association for Local Government Authorities in Kenya (ALGAK) and Friedrich Ebert Stiftung in Nairobi.

In addition, a Nairobi-based pro-majimbo lobby group, "Chama Cha Mwangaza na Majimbo (CCM)" (the Majimbo Party), has called for the implementation of the majimbo constitution of the 1963-64 period. The lobby charges that the constitution was never given a chance before it was eventually abrogated and thrown out unfairly.

Not all Kenyans, however, are as nostalgic of the brief hiatus of majimboism in 1960s as the CCM lobby. The late Peter Habenga Okondo, KADU legislator in the turbulent sixties, dismissed the majimbo constitution as "a clumsy compromise between the federal Westminster model and the unitary English system."

Andrew Morton, in his highly saccharine biography of President Daniel arap Moi (Moi: The Making of an African Statesman 1998) is all praises for the majimbo system. He lauds it as "a system of checks and balances designed to safeguard the integrity of small tribes which were in danger of being overwhelmed by larger tribes, particularly the Kikuyu" (1998: 108).

What kind of constitution was majimbo and why did it fade so quickly like the morning mist in a sunny day?

Political thinkers and legal experts argue that the 1963 majimbo experiment was a hastily conceived, clumsy and badly thought out variant of federalism. In a recent paper, The Majimboist Movement: Devolution and the Protection of Minority Rights in Multiethnic Kenya (2000:13), Drew Jackson cogently argues that: "The product of hasty negotiations between centrist and federalist forces in the looming face of self-rule, the Majimbo

Constitution fell short of creating a truly federalist state comprised of multiple sub-state sovereigns."

In his powerful article Independence and Safeguards in Kenya published in a 1967 issue of the then widely read East African Law Journal, Professor Yash Ghai observed that: "[T]here is little evidence of clear or coherent thought behind [the majimbo] plans." The effect is that this saddled the nascent country with a ramshackle of a quasi-federal constitution that was never given serious thought. Ghai and McAuslan tell us that "The regional governments -were clumsy and unwieldy, there was a wide dispersion of authority, and no clear lines of responsibility."

In the end, the majimbo experiment neither pleased its proponents in KADU nor did it win its opponents in KANU. The KADU President, Ronald Ngala, scoffed at it as a "breach of faith (Sunday Times, November, 1963). The brilliant KANU Secretary General, and then Minister for Constitutional Affairs, Tom Mboya, taunted it as "an experiment-that -[was full of] unworkable and unfair provisions (East African Standard, May 15, 1963).

In his book, Not Yet Uhuru, Jaramogi Odinga observed that "the [majimbo] constitution was based on artificially engendered fears, for it is obvious that the European settlers and the British Government helped KADU and accorded it an importance out of proportion to its popular support."

The system was not only expensive in terms of money and personnel, but also prevented the growth of nationhood and retarded economic development. It was "too legalistic and cumbersome, literally requiring a battery of legal experts and clerks at the Centre and Regions to interpret the dos and the don'ts hidden in the myriad legally worded clauses if it was ever to work, writes Odinga.

The failure of majimbo is attributed to the high-handedness and opposition by Kenyatta's Kikuyu-dominated oligarchy. While most of former KADU leaders seized and consolidated the reigns of power after Kenyatta, in the entire 1978-1990 period, not a single constitutional amendment to re-introduce majimboism reached the floor of parliament. Asked why this was the case in the recent conference on Majimboism, Honourable William Ole Ntimama, a senior majimbo proponent, simply quipped: "Power is sweet."

Is Majimbo the same as federalism as practised in Germany, the United States, Canada, Australia, Switzerland, India and Nigeria? As a system of devolving state power horizontally, federalism is viewed as accommodating and inclusive of diverse cultures and identities. It, therefore, suits large countries or those with competing racial or religious identity problems and is widely prescribed for ethnically divided societies in Africa.

Federalism's greatest strength is that it provides an ideal local nursery where skills and leadership are tried out before being transplanted to the national level. It is said Bill Clinton was earmarked as a national leader after his economic miracle in the tiny Arkansas at a time when America needed an able economic reformer; and George W. Bush, it is said, because of his "compassionate conservatism," strong moral leadership and great skills in forging unity of diverse cultural and racial groups and interests in Texas. You may not believe this but most Americans do.

Federalism promotes localism, ethnic and racial xenophobia and undermines the sense of nationhood. Unsurprising the United States and Nigeria are living survivors of debilitating separatist wars between their regions; India, despite its federal miracle still bleeds from secessionist movements. The introduction of ethnic-based 'quasi-regionalism' in post-Mengistu Ethiopia has fuelled the conflict over the proposed Oromia state by members of the Oromo ethnic population.

Majimboism in the early 1960s had let off the lid of secessionist movements, particularly by Kenyan Somalis in North Eastern Province and the clamour for an autonomous "Mwambao" on the Coast. There is no guarantee that this time around, majimboism will not trigger ethnic recidivism and separatist movements, especially in North Eastern, Coast and Eastern province where the Oromo population may lean towards the movement for an Oromia state.

Federalism's main weakness is that it is a very expensive system that duplicates services and office holders at the regional and federal levels. It lacks uniform policies on such issues of national concern as laws regulating marriages, divorce, abortions, liquor, voting rights and public education. Rather than ensuring economic equity, as many proponents of majimboism assume, it sets those regions, states or cantons with a weak market-base, capital, and resources down the spiral of economic decline. It subjects local governments to double subordination-by the central and regional governments-and the citizens to triple taxation. At a time when the country's economy is on its knees, the feasibility of a well-financed transition is highly doubtful.

The pro-majimbo crowd is a coat of many colours knit together by the common fear of the effects of liberal democracy. Thus majimboism is conceived as an antidote to the excesses of liberal democracy, as a system that gives undue political muscle to numerically larger ethnic groups and threatened ethnic minorities with perpetual exclusion from power. Others have drawn out their swords against the unitary state, disowning it as a relic of colonial autocracy that privileged ethnic majorities and trampled on the cultural, social and economic rights of ethnic minorities.

Majimboism has its sinister ring and a shade of blood. In many a Kenyan mind, it is twined with what both national and international human rights watchdogs have unmasked as politically-sponsored ethnic cleansing, indeed genocide, in the Rift Valley, Western, Nyanza and Coast provinces. Politically-inspired violence killed and displaced thousands of Kenyans from their homes, destroyed property, brought local economies to their knee, made children destitute and assaulted citizenship and nationhood. Critics argue that majimboism is a prized arrow in the quiver of the ruling elite to secure its place in the sun in the face of mounting local and international pressure for political change and economic transparency.

The unitary system, arguably, represented the Cold War reality when Western governments and donors backed such "Strongmen and Big Men" like Mobutu, Kenyatta, Banda, Haile Selassie and Siad Barre, to mention a few, lock stock and barrel. They gave a pride of place to "Strongmen and Big Men" and unitary states whether of the military or civilian types as the only guarantee of "order amid chaos" and bulwark against communist take-over. Indeed, fear of mobs swarming the streets or of rag-tag gun-totting kid soldiers or ethnic warriors stalking and terrorising the countryside has forced donors to take a cautious, almost propitiatory stance on neo-tyranny.

Hence, the resurgence of the federal idea is viewed as a legitimate child of globalisation. It has at once promoted global integration, which is captured by the metaphor of a 'global village', and fuelled tribal and racial sensibilities.

The more refined defence of majimboism is pegged on two body of theories: 1) The classical idea that the diffusion of power prevents tyranny; 2) Each ethnic group is entitled to autonomy. The late Peter Habenga Okondo, in a 390-page book, A Commentary on the Constitution of Kenya, cried out for the establishment of "The Federal Republics of Kenya" with "Tribal States" as its building-blocks.

Dismissing the prevailing constitutional order as an artificial creation of British colonial authorities, Okondo hailed tribal states as the anchors of true nationalism and the best guarantee for national unity. He exhorted Kenyans and, indeed, all Africans to return to their tribal hearth because they have a "natural allegiance to tribe" and can only feel secure and at home in autonomous ethnic states. Okondo's twenty-first century tribal category that has remained primordial, pure and static since Adam was banished from his 'tribal' homeland of Eden would, no doubt, stir colonial anthropologists in their graves!

Okondo skates on thin ice when he likens his version of federalism to the states in the United States of America. He argues rather spuriously that the American's dual allegiance to their home states first and only second to the federal government, has strengthened the United States and will make Kenya stronger. This argument flies in the face of the fact that American States are not based on homogenous ethnic or racial groups; in fact,

American states are multicultural and multiracial and movements to the contrary are actively resisted.

On the other side of the majimbo pendulum is the call for a multiethnic federal system based on ethnic co-operation rather than exclusion. The spearhead of the idea of multiethnic regional states is the Coast-based Shirikisho Party of Kenya (SPK). This comes in the aftermath of the bloody ethnic cleansing of Wabara or Wakirienge (as the up-country people are collectively called at the Coast) in 1997.

"Federalism is the devolution of power to the people," said Mwagomba Mwapeu, SPK's candidate for Matuga constituency during the 1997 elections, "not discrimination against people because of their tribes or race."

Missing in these articulations of Majimbo is the place of the descendants of the indomitable Jeevanjee, Makhan Singh, Pio Gama Pinto or of Kamlesh Patni and his ilk. So is that of the posterity of Lord Delamere, Louis and Mary Leaky.

Indeed, In publication, The Federalist: The Voice of Reason, Honourable Shariff Nasir talks of "us who come from the smaller tribes," thus obscuring the place of Kenyans of Arab descent in this tribal constellation (1999:2).

The clamour for majimboism comes at a time when Kenya is spearheading a closer union with Uganda and Tanzania reminiscent of the defunct East African federation and when the African continent is transforming itself into a kind of federal union, along the lines of the European Union. This challenges the wisdom of shifting to a federal structure internally.

Unitary and federal systems alike are as old as the hills. There is nothing untoward in Kenya adopting German-style federalism. The question is whether a federal system will save Kenyan from the problems of governance, accountability and corruption that have bedevilled the unitary state. Does Kenya really need a brand new system? Or shouldn't it rather transform the culture of politics upon which poor governance, lack of accountability, corruption and impunity are embedded?

Be that as it may, adhering to a predatory ethnic logic will irretrievably torpedo nationhood and citizenship rights. Luckily for Kenya ALGAK seems to understand this particular point. An in-depth analysis of the ALGAK position on the issues raised in this think-piece suggests that what the association calls for is a decentralized and democratized central government, strong institutions and independent and autonomous local governments.

The smallest unit of legislative and executive power is a viable district which protects its community and minorities within it. A democratic nexus between these districts and the central government is established and guaranteed through a second chamber that also protects the communities and minorities at the centre.

There are no other layers of governance, such as federalism, provincial administration and the ministry of local government, vitiating the autonomy, resources and the protection of local governments. The second chamber, the chamber of ethnic communities if you want to call it so, resists negative ethnicity and the violation of minority rights. ALGAK has put these proposals for the consideration of those who want to save the Motherland.

Dr. Willy Mutunga is the Executive Director of the Kenya Human Rights Commission. Mr. Kagwanja, a doctoral candidate, is a Programme Associate at the Commission.

Copyright 2001 The Nation. Distributed by AllAfrica Global Media (allAfrica.com).