I received this on email, thought I should share.
The Constitution review process has entered the home-stretch. The battle lines are clearly drawn, with the government, civil society and mainstream media coming out with barrels blazing in an unprecedented unity of purpose in supporting the proposed constitution.
At the opposite end is the No campaign led by the Church, with the unusual but inconsequential support of a couple of Cabinet ministers whose motives have nothing in common with those of the Church.
Unlike in 2005 when the referendum was decided on the basis of personalities, the 2010 referendum will be decided on issues – and only two issues for that matter, namely, whether Kenyans are so desperate for a new constitution that they would accept an admittedly flawed draft, or if they are willing to wait a little longer and get a constitution which commands overwhelming support.
As the two sides of the campaign sharpen their daggers, one argument has emerged as the most potent weapon in the arsenal of the Yes team, namely that unless the Church relents in its campaign against the proposed constitution, it will lose credibility in the eyes of its flock should the latter vote in favour.
The argument goes that if this happens, the government would no longer have to be scared by the Church in future when making controversial or openly unpopular policy decisions such as the re-introduction of the Reproductive Health Rights Bill which unashamedly sought to legalise abortion in 2007 but was hastily withdrawn following sustained resistance marshalled by the Catholic Church.
Is this really the likely outcome if the Yes vote carries the day? The following reasons suggest that this is nothing but intimidation.
First, while the Church has been categorical about the two deal-breaker issues of abortion and kadhi’s courts, the Yes side is yet to advance any sound, logical and sensible grounds to counter the Church’s position on those issues, apart from telling Kenyans to pass the constitution with its flaws and amend it later.
Of course, no one has bothered to tell Kenyans how they will amend an actual constitution when Parliament itself was unable to amend a mere draft. It follows that even if the Yes vote wins, Christians will remain convinced as to the validity of the grounds relied upon by the Church in opposing the proposed constitution.
Second, the Church has never claimed to have any power to force its flock to vote in any particular manner. Accordingly, no disobedience arises on the part of the Christian who decides to vote as guided by his or her conscience.
Nevertheless the Church has the duty to help its flock to acquire a well-formed conscience. If any Catholic, or indeed any person is convinced by the Church’s argument, by disobeying the Church, such people disobey their own conscience, which amounts to disobeying God.
Third, in opposing the proposed constitution, the Church is merely discharging its prophetic mandate in society as it has done for 2,000 years.
Fourth, contrary to what politicians want Kenyans to believe, the Church has nothing to gain from the success of the No vote. If the No vote wins, the Church will have lost its 20-year-old crusade for a new constitution. If the Yes side wins, the Church will still have lost the opportunity of giving Kenya a morally acceptable constitution. In either case, the struggle would continue.
Fifth, unlike the politicians, the Church is not engaged in a popular contest over the proposed constitution. Its legitimacy is rooted in the hearts of its followers despite differences in opinion, and it is most unlikely that the outcome of the referendum would disturb that balance.
Sixth, the Church has never used or threatened to use the numerical strength of its followers to achieve any political objective. The fears of the government in that regard are therefore misplaced.
Seventh, the voice of the Church is eternal and speaks not only to the present but also to future generations. History proves that an aspect of truth denied by one generation may sound like a brain-wave to future generations since truth is, in essence, immutable.
Eighth, Church-State relations have, throughout the centuries, been characterised by mutual suspicion and even hostility. This is unlikely to change whichever side wins in the referendum.
Ninth, granted that the proposed constitution contains fairly progressive and has refreshing ideas on how Kenya is to be governed, it is quite possible that many Christians will vote in favour of the proposed law out of a genuine belief that it is the right thing to do.
Still, others, out of fatigue accumulated over almost half a century of repression, will simply vote ‘‘yes’’ in order to get this matter over and done with, without intending to express contempt for the views of the Church.
Lastly, the politicians now lambasting the Church and calling the bishops all kinds of nasty names are the same individuals who, after the referendum, will be seeking out the same church leaders to wed their daughters and bury their dead. So much for loss of face!
Mr Maema is an advocate of the High Court practising in Nairobi.