The Constitution as both a monument and a memorial:

A psychoanalytical perspective of the International

Criminal Court and Rule of Law Debates in Kenya

O
n 4 August 2010, Kenya held a referendum
to determine if a new Constitution would
be adopted or not. It was a decision that
was intended to usher Kenya into a new age and
dispensation. It was meant to give Kenya a break
from the past that was informed by: tribalism,
By Joshua Kembero Ogega
nepotism, mismanagement, little regard for hu-
man rights, disregard of rule of law etc.

It was a ‘never again’ moment. Af-
ter the 2008 post-election violence,
Kenyans wanted a united nation. One
of the means through which they
would get such a nation was through
promulgation of a new Constitution
that would spell out the future of the
country. Thus on 4 August 2010, they
turned up in their numbers and en-
dorsed the document that we now
call the Constitution of Kenya (2010).
It was a conscious decision informed
by the experiences that the nation as
a whole had gone through from af-
ter gaining its independence in 1963
and particularly the post-election vio-
lence in early 2008.
However, five years after that eventful
and hopeful August, there is nothing
much to write home aboutin terms
of the steps that have been taken in
making Kenya a nation that is based
on human rights, rule of law, respect
for minorities etc. The transformation
that we expected has been watered
down by the perpetuation of a culture
of impunity, corruption, tribalism and
nepotism. Kenya is inundated with
debates on who fixed who at that the
International Criminal Court, the ex-
ecutive is disregarding court decisions
and there is little regard for the victims
of the 2008 post-election violence.
This essay seeks to look at a psy-
choanalytical perspective of what is
happening in Kenya and what might
result from the current stalemate. As
such, it takes a Freudian perspective
of psychoanalysis to explain the Ken-
yan situation. Thus, to understand
the link between the Kenyan situation
and psychoanalysis, the following
section of the essay provides a ‘Psy-
choanalysis 101’ introduction of what
the concept entails.
Understanding psychoanalysis
Psychoanalysis has its origins in the
psychological and psychotherapeutic
theories and associated techniques
traceable to Sigmund Freud and Jo-
sef Breuer. It is considered one of the
three Viennese Schools of Psychother-
apy that is: logotherapy as was pro-
pounded by Viktor Emil Frankl, Alfred
Adler’s individual psychology and
Freud’s psychoanalysis.
Psychoanalysis posits that any person’s
development is usually influenced by
events of a person during his child-
hood and which the individual may
perceive as forgotten and cannot be
remembered. It argues that inherited
traits alone do not influence a person’s
development. Secondly, psychoanaly-
sis posits that mannerisms, human at-
titudes, experiences and the thoughts
of any human being are influenced by
irrational drives that are deeply root-
ed in the unconscious.
Thirdly, for one to form mechanisms
that can effectively prevent such ir-
rational drives from coming into the
fore, he or she must overcome psy-
chological resistance in the form of
defence mechanisms and bring past
events to the fore. Fourthly, neurosis,
neurotic traits, depression etc. are as
a result of conflicts between the con-
scious and unconscious part of the
human psyche whereby these forms
materialise after overcoming repres-
sion by the conscious mind. Fifthly,
the only way of getting rid of these
materialisations of the unconscious,
is to have one bring them into the
conscious mind through therapy,
skilled guidance etc.1
This essay will not delve into the de-
tails of Freudian psychoanalysis but
will use the brief outline above to
explain Kenya’s situation. In this re-
gard, the essay starts by analysing the
conscious. In doing so, it relies on the
works of the German constitutional
law theorist Carl Schmitt. The prom-
ulgation of the Constitution of Kenya
(2010) is thus explained as the Ken-
yan conscious mind taking a decision
to determine its future.
a. Carl Schmitt’s positive concept
of the Constitution
Carl Schmitt propounds a ‘positive
concept of the Constitution.’ This idea
is advanced in his work Constitutional
Theory. From Carl Schmitt’s perspec-
tive, a positive constitution is called so
because it is based on a complete and
conscious decision by people living in
a given political unity over the type
and form of their political unity.2
In his work, The Concept of the Polit-
ical, Schmitt posits that once a politi-
1 McLeod S ‘Psychoanalysis’ (2007) http://
www.simplypsychology.org/psychoanaly-
sis.html (accessed 19 October 2015).
2 Schmitt C Constitutional Theory (2008) 75.

52 No. 15, February 2016


cal unity has been accomplished, there
must be ways and means of ensuring
that the political unity survives. This
is by reconfirming itself through the
manner in which the people in the
political unity want to cooperate. To
ensure that the people are united both
within the political unity as ‘friends’
against ‘enemies’ outside the political
unity, there is necessity for a policy
that can ensure that the ‘friendship’
within the state is maintained. There-
fore, constitutional law then establish-
es as a binding legal order that de-
termines how the political unity shall
exist and how it shall be maintained.3
The constitution, according to this
positive model, originates from an act
of the ‘constitution making power’ or
the constitutive power of the people
in a political unity.4 It entails the con-
scious decision that is made by people
in a political unity. As such, it comes
after the existence of the political
unity; it does not create the political
unity. Therefore, new forms of norms
can be introduced to the constitution
without making the state non-existent
or without ending the existence of the
political unity. This is because the po-
3 Bökenförde E ‘The Concept of the Political:
A key to understanding Carl Schmitt’s Con-
stitutional Theory’ (1997) 10 Canadian Jour-
nal of Law and Jurisprudence 8.
4 Schmitt C Constitutional Theory (2008) 75.
litical unity in this sense exists outside
of the Constitution; it is transcendent.5
The positive concept of the consti-
tution is seen in the founding of the
United States of America in 1775;
the establishment of Czechoslovakia
in 1919; the establishment of French
Republic in 1789 and the Russian Fed-
eration after the Bolshevik Revolution.
The concept holds that a constitution
does not establish itself but is given to
an already established political unity
and holds that is nonsensical or one to
state that a constitution can establish
itself.6
In the Kenyan context, this conscious
decision was taken when Kenyans
voted for the adoption of a new con-
stitution in 2010. After going through
the travails of the 2008 post-election
violence, there was need to ensure
that the political unity that is Kenya
does not disappear. Adoption of a new
constitution represents the conscious
mind at work.
From a psychoanalytical perspective,
one may simply posit that Kenya was
trying to overcome the depression that
had been occasioned by trauma from
post-election violence. The post-elec-
tion violence period represents a time
5 Schmitt (2008) 75.
6 Schmitt (2008)76.
No. 15, February 2016
The Mau Mau
Freedom Fighters
Memorial monument
at Uhuru Park,
Nairobi
when the unconscious mind of the
Kenyan psyche that had been hith-
erto repressed came to the fore and
wreaked havoc in early 2008.
Therefore, to overcome this traumatic
phase and to ensure that the depres-
sion was wholly healed, Kenyans took
a psychoanalytical approach. The ele-
ments of the unconscious were liberat-
ed through bringing into the conscious
mind what happened in 2008. The Na-
tional Accord and Reconciliation Act
was enacted, the Waki Commission
was established as a let out for Ken-
yans; a means that was necessary to
bypass the defence mechanisms. Anna
Freud listed these defence mecha-
nisms as among others repression, in-
trojection, regression, turning against
one’s person, isolation.7
There was also the Truth Justice and
Reconciliation Commission and the
Kriegler Commission that looked
into the manner in which the 2007
elections were conducted. The aim
of these post-conflict structures was
to ensure that the unconscious had
been overcome and Kenyans were fi-
nally able to get ‘psychiatric attention’.
These structures represent the con-
scious overcoming the unconscious. It
also represents the psychiatric effort
7 Szondi L Ego Analysis translated by Arthur
C. Johnston (1956) 268.
53
of overcoming the unconscious by
bringing the unpleasant experiences
of post-election violence and past re-
gimes into the conscious mind. They
are what can be referred to as the
‘therapeutic intervention’ that Kenya
deserved.
Following these therapeutic inter-
ventions, Kenyans made a positive
decision to enact a new constitution.
That constitution serves two purposes
in the context of psychoanalysis. As
noted above, one of the unconscious’
defence mechanisms is repression and
this occurs in the form of psycholog-
ical repression. As Werner Bohleber
writes, in Remembrance, trauma
and collective memory: the battle
for memory in psychoanalysis, the
unconscious is driven by a reluctance
that stems from ‘the desire to avoid
confronting the crimes, the horror and
the victims’ suffering.’8
Leon Salzman in Memory and Psy-
choanalysis writes that in psycho-
therapy, memory plays a very big role.
Therefore, for effective psychotherapy,
there must be willingness to recall and
review recent happenings that affect
the present way of thinking, feelings
and behaviour.9 Therefore, a victim
is encouraged to lift repression by re-
playing his or memory and retelling
the traumatic experiences kept in the
unconscious.
To sum up the role of ‘memory’ in
psychoanalysis, Constitution of Kenya
(2010) serves a memorial that brings
into the fore the repressed elements of
Kenya’s past and particularly the ex-
periences of early 2008. It is a memo-
rial that ensures that Kenya does not
go back to the events that culminated
in the post-election violence of 2008.
The Constitution serves as a monu-
ment to celebrate the overcoming of
the traumatic experiences that culmi-
nated in the evils of early 2008. The
monument serves to remind Kenyans
of the memories of that part of history
and inspire them never to go through
that path again.
The following section explains the
‘memorial’ and ‘monument’ aspects
of the Constitution.
8 Bohleber W ‘Remembrance, trauma and
collective memory: the battle for memory in
psychoanalysis’ (2007) International Journal
of Psychoanalysis 329-52.
9 Salzman L ‘Memory and Psychoanalysis’
(1966) 39 British Journal of Medical Psy-
chology 197–206.
54 No. 15, February 2016
The Constitution as a memorial
and monument
This section explains the ‘memorial’
and ‘monument’ aspects of the Con-
stitution. This view is propounded by
Johan Snyman in the paper ‘Suffering
and the politics of memory’. He states
that after a society has gone through
some form of trauma, it always finds
ways to heal itself from the effects of
the trauma. It does this for instance
by building war memorials where the
war etc. can be remembered. Some
societies deal with the trauma by com-
ing up with constitutions as a way of
reminding them of the trauma which
they went through.
Snyman states that while constitutions
can be both monuments and memo-
rials at the same time, they differ in
the sense that a memorial commemo-
rates whereas a monument celebrates.
Constitutions as memorials celebrate
the dead and have the future in mind
whereas the constitution as a monu-
ment provides a reorientation to the
past.10
Lourens du Plessis argues that the
South African constitution is a mon-
ument in the sense that it provides a
monumental achievement after cen-
turies of racial oppression in South
Africa. It is a memorial in the sense
that it reminds the nation that they
have an obligation to ensure that so-
cial justice is engendered. He states
that it is an attempt at preventing
‘otherisation’ by embracing humani-
ty of other people through principles
such as Ubuntu.
He cites the case Crossley and Others
v National Commissioner of South
African Police Service and Others11
where the court held that Ubuntu
recognizes and embraces humanity,
group solidarity, human dignity, com-
passion, morality and conciliation. On
the basis of this, the court attempted
to reclaim the humanity and dignity
of a deceased person (who had been
killed and his remains treated in a de-
humanising manner) and his family by
allowing that they exercise their right
to bury him on someone else’s land.12
10 Van Beek UJ Democracy Under Scruti-
ny: Elites, Citizens, Cultures (2010) 99.
11 [2004] 3 All SA 436 (T).
12 Du Plessis L ‘Affirmation and celebration of
the ‘religious Other’ in South Africa’s con-
stitutional jurisprudence on religious and
related rights: Memorial constitutionalism in
action?’ (2008) 2 AHRLJ393-5.
The role of psychoanalysis,
specifically in the conception
of the constitution as memorial
In the context of the constitution as a
memorial, there is a tendency for the
monument to take over the memori-
al. The monument commemorates the
past and reminds the people of its he-
roes and the sacrifices that they made
and calls for offers of sacrifice when
called upon to do so. On the other
hand, the memorial asks the viewer
will be the one who will fight to en-
sure that such ‘sacrifice’ needs not to
happen again and disrupts the logic of
sacrifice and identify with the victims.
The monument results in victimhood
and a reminder of humiliation leading
for the victims to turn against the oth-
er in the form of racism, xenophobia
etc.
There is therefore, the tendency for
people to focus more on the constitu-
tion as a monument at the expense of
having it as a memorial. In this case,
victimhood takes over as the sover-
eign and dictates that the constitution
must be looked in terms of the trauma
that necessitated its passage.
Additionally, Sigmund Freud posits
that we all have the death drive in
us which tends to overcome our will
to live. It is the drive towards death,
towards self-destruction and the re-
turn to inanimate state.13 In Beyond
the Pleasure Principle Freud posits
that man has the will to live. This is
expressed in his desire for pleasure.
However, there are cases where there
are exceptions to this general rule.
This is seen in recurrent dreams in
‘war neurotics’, patterns of self-injur-
ing in some people and the tendency
of many patients in psychoanalysis to
want to repeat and narrate unpleasant
incidences in their past.14
In the same light, there is likelihood
for the monument to take over the
memorial and remind people of their
traumatic past. That is, instead of us-
ing the traumatic past as a means to
heal and ensure that such trauma does
not occur again, there is a tendency
that the monument may be regarded
highly for reminding a given people of
the sacrifices that were made to come
13 Dufresne T Tales from the Freudian
Crypt: The Death Drive in Text and Con-
text (2000) 159.
14 Smith RR Death-drive: Freudian Haunt-
ings in Literature and Art (2010) 48-51.
up with, for instance, the constitution
or freedom.
They may desire to call upon the mak-
ing of such sacrifices as a result of the
bitterness that they still hold. This may
happen for instance through xenopho-
bic attacks or tribal animosity. It can
also prey on the minds of those that
are adjudicating over constitutional
matters and make their interpreta-
tions mirror the monumental aspects.
A psychoanalytical link to the
ICC and Rule of Law debate in
Kenya
On the one hand, in September 2015,
Moses Kuria claimed that he took part
in fixing William Ruto and Joshua arap
Sang at the International Criminal
Court. Since stating so, there has been
a ping pong game between the two
sides of the debate. The Opposition
leader Raila Odinga has claimed that
it is Uhuru Kenyatta that fixed William
Ruto at the ICC. Political rallies mas-
querading as prayer rallies have been
held to ‘pray for the death’ of the case
against Ruto and Sang at The Hague.
On the other hand, there was a teach-
ers’ strike in September in which the
Teachers Service Commission and the
Executive refused to honour a court
judgment that directed an increase of
up to 60% in teachers’ pay. Questions
have been raised as to why the Exec-
utive is not ready to honour the court
ruling yet it is itself a product of a court
judgment that ruled that the President
and his deputy were duly elected.
These two debates raise a number of
psychoanalytical concerns. One of these
concerns relates to the question on
whether Kenya as a nation underwent
complete psychotherapy following the
2008 post-election violence. The other
one is whether this may lead to a recur-
rence of violence or anarchy.
This is because issues relating to rule
of law and impunity were at the heart
of the conflict in 2008. Impunity was
bleeding Kenya and there was a gen-
eral feeling among Kenyans that for
us to have a clear way forward, more
regard had to be given to rule of law. A
new constitution was expected to en-
sure that that happens. Additionally,
a new judiciary was set up to ensure
that judges are independent. Howev-
er, the total disregard of court rulings
by the executive show that Kenya still
needs more psychotherapy to prevent
a recurrence of pre-2008 where impu-
nity informed the order of business.
The other concern relates to the ICC
debate. There has been less talk about
holding the small-time players of the
fiasco accountable. There is also little
talk on how to handle the victims and
help them overcome the trauma that
resulted from the 2008 post-election
violence. The Waki Commission has
been rubbished and politicised and
on the other hand, the Truth, Jus-
tice and Reconciliation Commission
(TJRC) was rubbished because of its
composition. Additionally, no one has
paid any due regard to the Report giv-
en by TJRC. To summarise the whole
fiasco, the traumatic experiences have
not been allowed to surface and be
subjected to therapy.
The fiasco can also be said to repre-
sent the ‘death drive’ inherent in us
as a nation. It seems that we are on
a rollercoaster to hell. The statements
that are made by our politicians are
an affirmation of the death drive as
Sigmund Freud called it. It is a drive
that seeks to overcome the conscious
decision that Kenya took to preserve
its political unity, by the unconscious
drives in us such as impunity, tribal-
ism, ethnic machinations etc.
Regard is also had to Jacques Derri-
da’s conceptions of psychoanalysis.
Jacques Derrida was a French phi-
losopher best known for developing
a form of semiotic analysis known as
deconstruction in which he dealt with
textual interpretation that sought to
find hidden alternative meanings in a
given text.
Derrida states that cruelty is inextri-
cably linked to human’s drive to sov-
ereign mastery. In The Beast and the
Sovereign, Derrida makes the argu-
ment that classical sovereignty is asso-
ciated with the performative tendency
of someone to declare him or herself
a master. It is expressed in the words
‘I am right becauseyou will listen to
me... stand in fear, I am the strongest,
and I will finish you off if you object.
This drive cannot be overcome and is
linked to cruelty.15
This is represented in the statements
made by politicians. Political muscles
are being flexed, and might is flaunt-
ed middle, right and left. No one is
15 McLane P ‘Sovereignty without Mastery’
(2013) 3 Societies 2.
No. 15, February 2016
willing to swallow pride and accept
that the trajectory Kenya is taking is a
dangerous one. It is a question of who
the master is and who the servant is.
It is a drive that, as Derrida puts, that
is linked to cruelty. This can be seen
in the cruelty displayed by the failure
to pay focus on the victims of the evils
of the past and find a complete break
from the past.
Therefore, it can be said that we did
not undergo full psychotherapy as a
nation. This does not bode well for
the nation. There is need to under-
stand that psychotherapy is not selec-
tive. The manner with the ICC issue
has been treated affirms that Kenya
still needs more with regard to heal-
ing from the traumatic events of the
past.
Conclusion
From the above brief exposition, it can
be concluded that the Constitution of
Kenya (2010) is only serving its func-
tion as a monument. It is a monument
in the sense that it was monumental
achievement after decades of bad gov-
ernance in Kenya. It is used to com-
memorate the past and the fact that
Kenya underwent a traumatic past but
came up with a document that now
guides it.
However, a section of Kenyans still re-
gard themselves as victims and have
disrupted the logic of sacrifice. There
is no talk of how to identify with the
real victims of bad governance and
ensure that violence and impunity do
not become the order of the day. In-
stead of using it as a memorial that
reminds of how bad the past was and
the need to break up from it; that
there is an obligation to ensure that
social justice is engendered, the push
by politicians seems to take Kenya
back to the past. The unconscious is
at play and wants to overcome the
conscious mind that wants to take
Kenya to the future.
Therefore, there is need to take a psy-
choanalytical perspective and seek
complete healing from the trauma of
the past for us to move on from impu-
nity, corruption, tribalism etc. into the
nation that is envisioned in the Consti-
tution of Kenya (2010).
Joshua Kembero Ogega is graduate of
Moi University School of Law (2013) and
currently a Master of Laws degree student at
the University of Pretoria, South Africa)
55