Challenges facing Kenya: decreeing and establishing a constitutional order

This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.

There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.

People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning.

The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted. The purpose for which power must be used and the mode of its exercise are set out in the law. The holders of even the highest state offices are subject to the law, not above it. This aspect of constitutionalism has proved extremely hard to realise in Africa—where public office has its own aura, and expectations of the people merely encourage the whimsical, or capricious and biased, exercise of state power.

Most elements of the framework of constitutionalism are unacceptable to those who gain access to state power, for they interfere with their primary objective of accumulation. This has been the essence of the Kenya experience. Constitutionalism has been rejected, and constitutionally sanctioned power has been exercised or abused in the name of ethnicity but in practice deployed for personal aggrandisement. The politics of the ‘Bomas’ process demonstrate this rejection of the values of the constitution: a professional phase where independent experts consulted with the people in accordance with national goals and prepared a draft constitution, and a deliberative and consensus-building phase with the representatives of the people, regions/communities, and civil society, were followed by a parliamentary phase where, against logic and democracy, politicians had a veto. It was illogical because all the Members of Parliament (MPs) were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, and more democratic and legitimate body than Parliament. While the ‘Bomas’ process afforded Kenyans for the first time ever the chance to decide on the values and rules by which they wished to govern themselves, politicians held a narrow interest in the constitution, focusing on access to state power, and their own personal prospects of securing that access. During the Bomas, most politicians, including ministers, about half of whom barely ever entered Bomas, showed little interest in human rights and social policies, including environmental and land policies. But they were passionately opposed to popular participation in and controls over the exercise of state power. They had little time for fair administration and public accountability of state officials.

As the analysis in the Waki Report on Post Election Violence in Kenya so vividly demonstrates, the process of accumulation cannot easily be secured within the parameters of a democratic constitution through mechanisms and procedures for accountability. Indeed the point that emerges with sharp and sad clarity is that it is only by constant and systemic violations of the constitution and the law that this political class is able to accumulate and establish its control over society—and its opponents. The horrendous consequences of these violations are graphically described in the Waki Report: corruption, institutionalisation of violence, the extensive use of militias, and the loss of the state monopoly of force (with weaknesses and divisions in state security forces). In particular the Report emphasises the role and prevalence of violence in Kenyan politics and society. It attributes many failings of the state to the personalisation of power in the president (and with it the absence of the separation of powers). The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in other violations of the law. There is little accountability for the exercise of public power. Impunity for the friends of the regime and for compliant state officials is rampant—and indulged despite public outcry. All these demonstrate the absence of the rule of law. The way successive presidents have misgoverned Kenya is proof that these violations are in fact the norm.

Serious consequences follow from this, not least the loss of state legitimacy. The state is not perceived as a social and political force for the common good. It is regarded, accurately, as partisan, throwing its weight behind specific communities and interests. The subordination of the electoral commission, the police, and the judiciary to the executive has resulted in their inability to resolve national problems, though this is why they are set up, with independent powers. The police are particularly singled out by the Waki Commission for their failure to ensure Kenyans’ security, and consequently are held responsible for numerous murders, rapes, and the displacement of the people. They are no longer able or willing to protect the people against violence and plunder by private and politically sponsored militias. The judiciary is so discredited that no one believed that it was capable of impartial adjudication of election disputes. The Waki Commission doubts the veracity of the statements of the attorney general about his attempts to enforce the law. The Waki Commission concludes, “Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators, has led to a culture of impunity and a constant escalation of violence”. The government and politicians have not only sanctioned violence, but they have also ethnicised politics and violence. Consequently the state has failed to perform functions intimately connected with the exercise of public power, indeed major reasons why we establish a state in the first place.

Despite the emphasis placed on constitutional reform by Kofi Annan, other eminent Africans, Kenyans and the international community, there is no guarantee that many of the reforms proposed by them and the Kriegler and Waki Commissions will help to get Kenya out of the hole in which successive regimes have placed it. I have said enough to indicate how vested interests, among politicians, businesspeople, and the bureaucracy will sabotage reforms (as they have done ever since Kenya’s independence). Despite the ravages wreaked upon the state, it still remains the primary means to accumulate wealth and power—and those who are in control of it will fight to maintain their control, regardless of the rules of the constitution.

It is hard to provide the answer to this dilemma, that the very sponsors of reform are its principal saboteurs. What we know is that constitutionalism cannot be willed; it must be established by deep commitment and sustained activity. The constitution cannot achieve anything by itself: like Marx’s commodities, it does not have arms and legs. It must be mobilized, acted upon, used, etc. This idea is also expressed by Granville Austin (2000), in his monumental study of the working and impact of the Indian Constitution, in which he says that a constitution, however living, is ‘inert’. A constitution does not work, it is worked. He says his book is ‘about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. It is about Indians working their Constitution…’

One way to understand the potential of a constitution to impose its imprint on state and society is to examine two key factors. One is internal to the constitution, and the other, external (society). The internal concerns the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. The balances within the constitution can do something to guide state institutions and empower the people. It is safe to say that constitutions may succeed in setting up institutions and giving them authority, but they often fail in the fulfilment of national values or directive principles—for the paradoxical reason that those who accede to these institutions may have little commitment to the values. It is interesting to note in this context that at Bomas, politicians paid almost no attention to values, but were obsessed about institutions—knowing well that if they got hold of institutions, they would be able to ignore values. As we know, most African constitutions contain excellent values and procedures, but, for the most part, they have failed to produce excellent states. In Kenya, even the essential pre-conditions of a constitutional state are missing: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law—and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved historical injustices.

They have failed in substantial part because of the second factor, which is external to the constitution, namely society. The constitution operates within society and seeks to influence its development. The distinguished Indian sociologist, Andre Beteille, believes that a constitution can provide directions for the national development and self-realization, but whether, and the pace at which, the development takes place depends on society. The constitution may set out guidelines for the exercise of power and the aspirations that the state must fulfil. But society also affects the constitution, sometimes pushing policymakers to uphold the principles enshrined in the constitution and sometimes negating those principles. I have already indicated that in Africa we have placed unjustified reliance on the capacity of the constitution to influence society. I have also indicated that the political order intended to be set up by the constitution competes with other models and realities—and in the end it is society that determines the extent to which the constitution will be observed, manipulated, or disregarded.

The African constitution not only fails to mould civic values or the behaviour of key political actors, it also fails to generate a state that is capable of sound social policies and fair and honest administration. Andre Beteille’s brilliant insight needs to be supplemented by a consideration of the obstacles to progress placed by the inherited, pre-constitution bias of the state apparatus. Perhaps inadequate attention has been paid to these obstacles, as opposed to societal obstacles, because it is assumed that the constitution, par excellence, designs and structures the state. However, as I have mentioned above, it may structure institutions, but may fail to infuse them with values and principles. The constitution tends to structure macro institutions but often says little about values and procedures of the administration of the state (which may persist from one constitution to another).

The implication of this is that political reform has to go beyond the constitution. It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s lives. A living constitution is one that citizens use in their daily existence, that governs and controls the exercise of state power, and promotes the values and aspirations expressed in it.

For these reasons, implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorised to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowerment of the people. Ultimately the people have to be guardians of the constitution.


Professor Emeritus Yash Ghai chaired both the Constitution of Kenya Review Commission and the Kenya National Constitutional Conference (“Bomas”). His areas of research and publication include public law, ethnic relations, autonomy and federalism, human rights, comparative constitutions, and sociology of law. He has taught at the Law Faculty of a range of universities including the University of Hong Kong University and Uppsala University, and been a visiting scholar in Harvard and Yale.

In 2005-2008, Prof. Ghai was the Special Representative of the UN Secretary General for human rights in Cambodia.

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5 thoughts on “Challenges facing Kenya: decreeing and establishing a constitutional order

  1. Professor Ghai knows as much about Kenya’s constitutional order (or lack of it) as anybody, and is well placed to speak with authority and balance on this most important of subjects. It seems to me that he is quite right to raise the point that many have focussed on constitutional weaknesses as a major contributory factor to the ‘Kenya crisis’. He is also correct to remind us that a good constitution (if we could agree on what that would look like) does not guarantee anything; a constitution is worth nothing if key actors do not strive to respect and defend it. These are important points, and Professor Ghai makes an insightful contribution to the debate by raising them.

    However, I think we need to beware throwing the baby out with the bathwater. The vulnerability of constitutional provisions does not mean that there is no value in establishing better constitutional rules, even in cases where leaders have little commitment to democratic norms and values. One of the most disturbing elements of the Kenya crisis was how easily President Kibaki was able to stack the system in his favour; not only was he able to manipulate the great powers of his office to personal advantage, but when dealing with the judiciary and the electoral commission, he was able to do it legally because of the absence of effective constitutional reform. The legal nature of the changes made it much harder for civil society groups, opposition parties, and the wider international community to object. Of course, even with a new constitution modelled along the lines of the Bomas Draft, President Kibaki may have chosen to flout the new rules; but at the very least, he would have had to expend greater political and personal resources to achieve this, and he would have faced greater opposition.

    A new constitution also creates the possibility (and Ghai is right that it is only that) for future institutionalization of key political processes. It is important to keep in mind that many leaders and governments over the years, including those with scant respect for the rule of law, have found constitutional rules and regulations to be surprisingly difficult to ignore. Witness the number of African Presidents that have failed to amend constitutions in order to secure themselves a third-term. Over time, good constitutions can become increasingly respected and so increasingly important in regulating political activity, even in cases where the immediate multi-party period saw controversial elections and opposition boycotts, as in Ghana. Constitutionalism is not created overnight, it has to evolve.

    As Professor Ghai notes, there are no easy answers to the question of how to build an effective constitutional system, and under what conditions one emerges. One hope is that creating a more legitimate legal framework that introduces checks and balances will empower opposition political parties and civil society groups to mobilize in defence of constitutional provisions. The combination of a range of domestic groups acting in concert can significantly increase the costs incurred by an incumbent regime seeking to defy constitutional provisions, especially when international actors intervene. For their part, international actors find it far easier to engage when a government is clearly breaking its own laws and its own constitution, rather than in a situation where the government’s actions may be unhelpful, but are clearly legal. Over time, the ability of a ‘pro-reform’ coalition may succeed in increasing the costs of violating the constitution, resulting in greater compliance with constitutional provisions over time and contributing to a gradual process of institutionalization.

    By raising this more optimistic interpretation I am not seeking to disagree with Ghai’s. I fully agree that ‘Ultimately the people have to be guardians of the constitution’. Indeed, Ghai is correct that a new constitution would not be magic wand, that constitutional reform is unlikely to be effective if it is not part of a broader reform package, and that Kenya’s political leaders cannot be trusted to deliver effective political reform of any kind. However, this does not mean that if Kenya was to find itself with a new constitution, it would make no difference to the prospects for democratic consolidation.

    Good constitutions raise the possibility of genuine progress; only a slim possibility to be sure, but that has to be better than nothing.

    Nic Cheeseman is University Lecturer in African Politics at the University of Oxford

  2. Prof Ghai’s arguments and the subsequent response by Nic Cheeseman raise an important point that is subsequently skirted by both writers.
    A good constitution operates in some sort of a constitutional order whose foremost quality as well articulated by Prof. Ghai is respect for the rule of law and the primacy of institutions. It follows therefore that a constitution must enjoy the support of the people it applies to, and these people must ab initio have a healthy respect for legal systems and institutions.
    The argument that is not followed through is the possibility that the reason ‘constitutional systems’ often fail in Africa is that they are modelled on systems whose values are different from those of Africans.
    For instance, the primacy of institutions over individuals is a strange concept in many African societies where the ruler and the institution are one and the same thing, in a restatement of the old European diktat ‘L’etat, c’est moi’. People in most African countries have only a vague understanding of ‘democratic ideals’ which are the staple of most ‘change-the-constitution’ movements in Africa.
    Perhaps we have been making our constitutions all wrong, by making assumptions about the values and principles of our people based on the views of the noisy middle class with ideological backing of the liberal (but ‘foreign’) intelligentsia.
    It might be time to begin constitution-making by asking the people a simple question concerning their perception of the state and their place in it, as well as the place of their other-tribe neighbour. A national process collecting these simple views might reveal the true nature of the state as viewed by its people, and a constitution modelled on these views might have a higher likelihood of being respected and upheld as opposed to a ‘perfect’ constitution written by a scholar like Prof Ghai and his team.
    The Bomas Process had the singular flaw of allowing a motley collection of mostly political representatives to sit and debate issues that belonged in a constitutional law class and not in a national debate. The reason for its ‘hijacking’ by the political elite was innate in its constitution- it was top-heavy with politicians who had control over most of its critical phases, as acknowledged above by Prof Ghai.
    I posit that for a successful constitution-making process on African soil (as almost anywhere else today), one must begin at the ‘grass-roots’, but with appropriate questions and concepts for that level of discourse!

  3. Yash Ghai is right to warn of an ‘unjustified reliance on the capacity of the constitution to influence society’ in the African context, and of the way in which constitutional codes can, and have consistently been manipulated or disregarded by political elite in an effort to entrench and expand their own political and economic advantage. One needs only look at the way in which formal and informal regulations are consistently flouted – such as those monitoring the use of firearms by state security services – to realise that a commitment to institutional ethos and written codes are necessary requirements for a culture of constitutionalism to arise. Yet, written codes are not wholly inconsequential. Constitutions provide an institutional framework that leaders need to negotiate in order to minimise the extent to which their actions are regarded as illegal and illegitimate. They therefore influence political calculations of what can be done and how, even if the practical implication is merely a shift in how rules are abrogated and ends met, rather than the style of political activity per se. Ultimately therefore, Ghai’s warning that ‘it is society that determines the extent to which the constitution will be observed, manipulated, or disregarded’ is timely and opportune.
     
    Unfortunately, just as Kenya’s current political class appears to have little interest in introducing or implementing reforms that may damage their vested interests, it is unlikely that ordinary Kenyans will act as simple and loyal guardians of any new constitution. The reason is simple: just as politicians can manipulate cleavages and historical interpretations, they are also a product of their communities and must respond to bottom-up pressures for their own survival. The problem is that in a context of popular political scepticism, inter-communal mistrust, ‘recognised ethnicities’ and ‘homelands’, and divergent ‘shared pasts’ of loss, injustice, marginalisation and achievement, ethnicity is becoming an increasingly powerful strategic narrative for the assertion of rights in the face of poverty and need. The discursive link between people, time and space becoming ever stronger. Yet this is a logic that encourages a vicious cycle, as citizens must protect their interests against the conflicting claims of others who assert rights to the same areas, resources and/or appointments on the basis of a different reading of local pasts and associated rights and roles of local citizens. This leads to a complex political terrain, which politicians can manipulate but must also navigate – a logic of defensive communalism that can encourage support for ‘maverick politicians’ and often pushes political representatives towards an abrogation of constitutional provisions – not just to further their own interests, but in the name of community protection. The result is a troubled reality where, just as a new constitution will clearly not solve all of Kenya’s woes, neither can ordinary citizens or local civil society be expected to offer an immediate coup de grâce.

  4. Prof Yash Ghai captures the tension in the neo-colonial states in Africa. As he said “even the essential pre-conditions of a constitutional state are missing: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law—and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved historical injustices.”
    This political dictum confirm our fears that to construct a new democratic state in Africa we need active organic social movements, that will anchor the values of participatory democracy, accountability, social justice on economic and political power in Africa… all in the space occupied by African states today and also the space within the current neoliberal civil society in Africa.
    The constitutions making process in Kenya has also been affected by vested interest both internal and external, which impose a liberal constitution, without debate and discussion on the implication and limitation of liberal constitutions in Africa, as applications of human rights instruments have shown in many of crimes against humanity committed in the continent, by complex political and economic power axis at play. Bolvia, a small country in Latin America, tested a terrain of constitutional making process through a constituency assembly that threatened the existence of Bolvia itself as a state which was triggered by demand for natural resources democratization, the peoples struggle in the country was led by social movements that acted on constitution to access social justice, and craft a modern  democratic state founded on values of social justice, this happened with intense peoples struggles and commitment by the Bolivia progressive leadership led by  Evo Morales, which can inspire most of africa countries that are still being chained in neo-colonial stractures.
    Gacheke Gachihi
    Bunge La Mwananchi social Movement
    19/08/09

     

  5. By the time we were tackling the 4th Principle I knew beyond a shoulder of doubt that, what the writer had stated in the article I had read was not only reporting a true finding but the sincerity of the heart of one man who has been grossly misinterpreted and misrepresented.

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