Comments on: Decreeing and establishing a constitutional order: challenges facing Kenya

By: Gacheke Gachihi

Gacheke Gachihi — Wed, 19 Aug 2009 13:47:39 +0000

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

By: Dr Gabrielle Lynch

Dr Gabrielle Lynch — Tue, 18 Aug 2009 08:18:16 +0000

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.

By: Dr Lukoye Atwoli

Dr Lukoye Atwoli — Mon, 10 Aug 2009 15:56:35 +0000

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!

By: Nic Cheeseman

Nic Cheeseman — Mon, 10 Aug 2009 10:45:20 +0000

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