How can I describe Nairobi? An arena of contestations? A political soap opera? Interesting place to be. I have made multiple entries into this beautiful city. This time I shall place emphasis on a time when I walked into the midst of a constitutional debate. Please note that the constitution has since been passed through a referendum. The word on the street was the constitution. YES or NO!

A constitution is meant to be a binding document. A collective 'norm' that provides safety and governs the actions and choices of all in society. A constitution is not a piece of 'legislation'. I fear that Kenya's proposed draft constitution in a very unfortunate way, fails to provide an umbrella for all its citizens and has recipe for exclusion rather than inclusion. Why do I say that?

A constitution should guarantee collective public goods and clearly spell out uncompromising rights. In doing so, it is very necessary that such a document avoids inclusions or omissions capable of making one section of society feeling isolated. How did 'abortion' get into the draft constitution? Over the years, abortion has been debated. For decades, scientists have not been able to agree on what exactly abortion constitutes. At the societal level, 'abortion' is culturally embedded. Very much in social fabric of religion, culture and morality. Such issues are very difficult to negotiate and in most cases consensus around them remains very elusive. For Kenya's draft constitution, I do think that Kenyan's deserve to know that they are entitled to a right to life. Now, what that means can be penciled out in acts of legislation at ministerial level etc. A second aspect that I do wonder how it made inroads to the constitution is the 'khadhi courts'.

As a student of political science and an admirer of political anthropology, I am aware that Kadhi courts are very ancient institutions and have been with us for many many many years. Whether they appear in the constitution or not, they are here and will continue being here with us. My concern though, is that when they appear in country's constitution, they mobilize emotions from those who do not submit their judicial rights to these institutions. The reaction we are seeing in Kenya over these courts would have been similar if it was 'catholic shrines', 'budhist temples' etc. I am a believer of 'freedom of worship'. That people can have the liberty and space to exercise their freedom. As long as that it guaranteed within a constitution, then there is no need to include other 'religious-specific' institutions. This is bound to raise 'meaningless' arguments because these are CULTURALLY embedded issues.

So my point is - A constitution is a document that seeks to serve collective interests. It is supposed to provide a unifying space for anyone that is guided by it. In most countries, it is very general and provides a safe space for its citizens. When you include culturally sensitive issues like the two discussed above, you create spaces for division, dispute and you also deviate the debate from vital/important issues that might go unchecked. For Kenya, I fear that this is already happening. The current draft constitution is an excellent piece and would guide the country to the next level, but I wish it did not have these vital yet misplaced items that have for the past several months deviated the debate from the real issues.