Saturday, August 19, 2006

The New Constitution -In Bits and Pieces

The recent clamour for minimum changes to the Constitution prior to next year's elections has revived a nagging question. The push for reform in the 90s led by Kivutha Kibwana's NCEC saw calls, not just for specific piecemeal amendments to the constitution, but a wholesale rejection of the document in favour of a new one. This led to the calls for a "people-driven" review process, the Bomas fiasco and ultimately, last year's referendum. Throughout all this, one thing remained a mystery to me. The called for changes could have been achieved far more cheaply and quickly through a series of Constitutional amendments enacted by Parliament without having to start the whole process from scratch. So why did we chose the vastly more expensive, and ultimately unfruitful, option? Does Kenya need a new constitution or can we amend the current one to fit our desires? What's wrong with piecemeal amendments?

The 90s debate over "piecemeal" or wholesale people-driven constitutional reform obscured an important fact. The current constitutional dispensation is as a result of numerous amendments to the Independence constitution (which itself was imposed on us). In fact, in the 30 years between 1963 and 1992, the Kenyan constitution was amended 28 times. In contrast, in the same period the US amended its constitution all of 4 times, and has only done so on 27 occassions throughout its 200 year history. Though the changes to our constitution have been of a piecemeal variety, they have rewritten the power map so dramatically as to have the effect of creating a new constitution. A comparison of the Independence and present constitutions bears this out. This was achieved in a relatively short time and at little expense. There was no collection of views, no referendums required to endorse the outcome. However, no one doubted the validity and legitimacy of the consequent constitution (people-driven or not).

Last year's attempt to replace the current constitution also highlighted another of its strengths which is also a prerequisite for any successful constitution: it has proven resilient inspite of the numerous attacks on it. It survived despite the overwhelming national consensus that we needed a new one. Despite its many failings, it has kept us together as a nation and, I think, we should not be in too much of a hurry to cast it aside.

I was never party to that consensus for a new document. Not because I did not think we needed constitutional change, but because I had become weary of Kenyan politicians who are too fond of (ab)using the constitution to settle their political differences. The fact is the majority of the amendments to the Kenyan Constitution addressed issues that were not of a constitutional nature.

According to the article "Ameding the Constitution -Learning from History" (I forget the author), posted on the now defunct CKRC website, the concept of the constitution and of constitutionalism were, to begin with, completely alien to Kenya. "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Another reason for the amendments, especially the early ones, was to strengthen the executive and through it the provincial administration as a possible panacea for the instability of the KANU Government. The divisions within the party and government were dealt with as if they posed constitutional issues. In the recent past, and particularly in the Bomas discussions, we have seen this reenacted. The debate over the proposed office of the Prime Minister was largely defined by the divisions within the NARC coalition. The infamous MoU, a power-sharing agreement between politicians, was suddenly the centre of a constitutional controversy. In fact, last year's referendum was less about the Constitution, and more about the internecine struggles within NARC.

In the light of the foregoing, it seems obvious that the long-term process of shaping and reinvigorating our constitution has been hijacked by the short term interests of the political classes. Our politicians are not to be relied on when it comes to promises of a new constitution. However (in the service of their stomachs), they have demonstrated that piecemeal changes are the most efficient means to effect change.

The Kenyan people can play the same game. We need to start looking out for ourselves. Over the last 15 years, we have witnessed a number of amendments that have improved the constitutional climate without requiring referendums and view-collecting. We can thus support piecemeal amendments if these are in line with our interests. The calls for amending the provisions dealing with the ECK present another opportunity. We can choose to ring in a few more renovations to our constitutional facade or we can wait and hope that whoever wins the elections will deliver the fabled "new constitution". Frankly, I prefer the former.


Jon said...

I freely admit that I know little about Kenya and less about Kenya politics, so this is probably an area where I should keep my mouth shut. I do however know a little about Constitutions and believe I can throw in my two pennies worth for the benefit of a debate or enlightenment.

Britain, as is well known, does not have a Constitution and the US does (which is also well known), and from the studies that I have encountered over the years, I believe that that balance is right insofar that it is right for those nations.

Why? Britain has a long history whereby the legal framework of what is in effect Britain’s unwritten Constitution has had a chance to develop and evolve. The rules of precedent, together with a fairly rigid executive and judiciary, have hammered the Constitution into its present form, and it is held together by a Constitutional Monarchy. Unless there is a revolution with the monarch being removed and a republic being proclaimed, I believe the lack of a written Constitution is appropriate for the UK.

The USA on the other had, effectively came into existence along the lines of ‘a revolution with the monarch being removed and a republic being proclaimed’, although not in so many words, but nevertheless came to exist without a Constitutional framework other than the (British) one of which it wished to rid itself. It would therefore, be totally appropriate for a nation in the situation of what the USA was when founded, to have a written Constitution.

Kenya, having shred (voluntary or otherwise), its colonial inheritance, in away not totally different from the formation of the USA, would have been wise to have a written Constitution as the basis of its founding law.

Legally and most importantly, for the benefit of accruing credibility, such a Constitution should be primarily concerned with the apparatus of the State and the rights of its citizens, and should not be permitted to be changed often or for political whims; as what I understand, is what has happened in Kenya.

The robustness of the original Constitution has been eroded along with some or all of its credibility (no doubt due to failures that occurred during the creation of the original Constitution or weaknesses in allowing too frequent amendments for political purposes), effectively leaving Kenya with what amounts to an ‘unwritten’ Constitution, similar to that of the UK’s Constitution but without the centuries of legal history behind it.

And the best way to solve it is… This is tricky, because the written Constitution is losing or has lost its credibility, and writing a new one at this point will not rectify the problem of lack of credibility, nor to carry on with various amendments is any more credible.

I believe only the test of time will ultimately solve this problem, since only through the passage of time, will the depth of legal developments and Constitutional amendments carry the weight of precedence and credibility, and this will apply wither the Constitutional is re-written or not; the main point being that whatever is written (assuming it is re-written), remains relatively unchanged once written.

Any body or commission that is given the task of re-writing the Constitution will have to be totally politically unbiased and disinterested if the re-write is to succeed and that, I believe is the challenge that Kenyans face.

Gathara said...

I appreciate your comments. The point I was making was that the current Kenyan constitution enjoys widespread legitimacy despite its many failings. It also embodies the political history of the country. While several amendments would be welcome, wholesale rejection of the document would be tantamount to a wholesale rejection of our recent past. How can we expect to build a tradition of jurisprudence if we start anew every time something goes wrong?