So Moi Day is still a public holiday!
As usual, it is interesting to track through the various constitution drafts. In 2002 the Constitution of Kenya Review Commission did not seem to focus on the presidential days, as you might call them: Kenyatta Day on October 20 and Moi day on October 10. It just proposed three “national days”: Madaraka Day, Jamhuri Day and a day to be fixed as “Constitution Day” to mark the adoption of the new Constitution.
By the time the draft emerged from Bomas, October 20had been included, but renamed “Mashujaa Day”. This remained in the Committee of Experts’ (CoE) drafts. Interestingly, the Parliamentary Select Committee in Naivasha removed all the detail, leaving only “Parliament may prescribe and provide for national days and public holidays”.
But the CoE thought this was not something on which they had to accept the MPs’ view, and reinstated the earlier provision. The CoE obviously thought – rightly – that national days were not a topic for MPs and politics, but for the people and should be in the Constitution.
Fairly clearly none of the CKRC, Bomas or CoE really focussed on the fact that there was a thing as a “Moi Day” public holiday. Probably if they had they would have eliminated it.
NATIONAL DAY OR PUBLIC HOLIDAY?
The Constitution carefully distinguishes between national days and public holidays. All national days are public holidays, but most public holidays are not national days. Our only national days are Madaraka Day, Jamhuri Day and Mashujaa Day. Parliament can pass laws recognising public holidays, but not add new national days.
No law defines the difference between public holiday and national day. As a matter of common sense, national days are intended as a celebration of nationhood, but the Constitution does not demand any official celebrations on those days. Most countries have days they celebrate as national days, some, like Kenya, more than one. Countries may, for example, celebrate their independence day, a revolution (like Bastille Day in France), a constitution day (Norway and Denmark), a monarch’s birthday (like Thailand) or a saint’s day (like Ireland).
Kenya is now in the odd position of marking Moi Day, but not any day associated explicitly with the first President!
A LITTLE HISTORY
The Public Holidays Act dates back to 1912. The list of holidays was very British — including Empire Day (remember that?) — and the first Monday in August (then August Bank Holiday in the UK). The other days were Good Friday and Easter Monday, Christmas Day, Boxing Day, and New Year’s Day.
Now the Act provides for 11 general public holidays, plus another in election years: The day of any general election (added to the law in 1997). Kenyatta Day was added in 1964 – as early as late April, when Kenyatta by legal notice added this, Labour Day and Independence Day. Apparently delusions of grandeur (or even of royalty) set in early! Moi Day was added in 1990 – by then Moi must have been sensing that the age of dictators was beginning to fade. Did he want to underpin his pre-eminence or provide for a memorial after office, one wonders. (Of course the ages of dictators are not really over.)
WHY MOI DAY SEEMS SO INAPPROPRIATE
When Moi Day was introduced as a holiday, Parliament was largely a rubber stamp for government. (It is somewhat better now, but is not quite so subservient to the Executive). The Daily Nation on Moi Day this week related how some MPs, including Martin Shikuku, were opposed, because they thought later Presidents would want their own “days” (and perhaps because awe of Moi was already fading), but did not speak openly
Reaction against Moi and his regime provided a major impetus for a new Constitution was a reaction to Moi’s regime. Without Moi everything is possible, people said. A new Constitution was to ensure there would be no more Mois: No more Presidents for life, no more Nyayo House torture chambers, no more abuse of human rights or stealing from the people. What an irony, then, that Moi Day should survive the old constitution that he twisted to his purposes and that sustained his rule for so long.
HOW AND WHY WAS MOI DAY RESUSCITATED?
A Mr Nyauchi went to court to argue it was wrong to say that Moi Day no longer existed. Justice George Odunga agreed. The case was argued in a very narrow way. Mr Nyauchi’s case was resisted by the Attorney General and relevant Cabinet Secretary. Their reasons were clearly untenable. Justice Odunga was clearly right to say the Constitution gives no detail about public holidays. And that the Public Holidays Act was still in force after the new Constitution, unless it contradicted it.
What is perhaps disappointing is that no one seems to have argued that having a Moi Day contradicts the values and principles of the Constitution. Perhaps the Attorney General would have found this hard to argue. The pity is that no one applied to be an amicus curiae to argue this point. But our approach to the role of friends of the court is very narrow and we do not usually allow them to argue points not raised by the main parties.
SO IS A MOI DAY COMPATIBLE WITH CONSTITUTION?
Now that we are in the era of our fourth President (and, had it not been for the abuses of the periods of Kenyatta I and Moi, would have been on the seventh or so), we should have moved beyond the personalisation of power and nation to thinking of the nation as the people not the person.
In fact, the Constitution is clearly hostile to personality cults. It replaced Kenyatta Day with the national holiday of Mashujaa Day, and declared that portraits of human beings should not appear on Kenyan banknotes and coins issued in future. You might argue that the UK still has the queen on its currency, but the modern monarch is not a politically divisive figure, but should be a symbol of national unity.
Is a Moi Day compatible with the Preamble that recognises “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”? Is it compatible with the values of the Constitution like patriotism and national unity? Is it compatible with a right like equality to have one day named after one man from one community?
INTO THE FUTURE
Interior Cabinet Secretary Fred Matiang’i tells us that his ministry has already been considering the future of public holidays. Let us put some observations on the table for that process.
First, Moi Day is an anomaly, and an insult to those who suffered under him.
It is true that we now have one Muslim holiday (Id el Fitri) as a general holiday. We are not suggesting that the holidays of all religions, however small, should be recognised for all. There are possibly more Baha’is in Kenya now than Hindus, Jains and Sikhs combined. It may seem a little odd to have various Christian holidays, despite the constitutional prohibition on state religion, but it just recognises the realities of a predominantly Christian population. There is no Hindu holiday recognised for all; Diwali is a public holiday just for Hindus. The same is true for Id ul Adha for Muslims. Is it compatible with non-discrimination for certain groups to have holidays recognised for them only? But under Article 32 on freedom of religion, everyone ought, if practicable, to be able to include their religious holidays in their annual holiday allowance.
And, why Madaraka Day? Many people do not understand it. It was not Independence Day – just the day Kenya got internal self-government, but remained a colony. It only became a public holiday in 1964 to replace Commonwealth Day (the renamed old Empire Day).
Finally, how about reverting to the CKRC draft and recognising Constitution Day (August 27th) as a public holiday?
By YASH PAL GHAI and JILL COTTRELL GHAI