Wednesday, December 16, 2009

Cutting a Long Constitution Short

There is no nice way to say it. The Harmonized Draft Constitution of Kenya is long. Very long. Its 165 pages contain more than 60,000 words. The Table of Contents alone is 11 pages. In contrast, the US constitution, the oldest such national document in continuous existence, is only 7800 words. In fact, across the globe, loquacious constitutions seem to be all the rage. In each decade since 1945, the average length of national constitutions has increased by between 1300 and 1900 words. We may not have scaled the heights of the Indian document (whose English translation, at 117,369 words, is the longest national constitution) or that of the State of Alabama (its 357,157 words make India’s look like a model of brevity) but there is cause for concern.

The most obvious problem is that a populace not renowned for its literary appetite, and busied by the daily struggle to keep body and soul together, will be unlikely to put much effort into reading and understanding it. Its very length and the complexity of its legal language will militate against this. James Madison, principle architect of the US Constitution said it best. "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

The constitutional fat strangles the common heart. It is hard to imagine the passion and patriotism that is inspired by

We, the people of Kenya—

ACKNOWLEDGING the supremacy of the Almighty God of all creation:

HONOURING those who heroically struggled to bring freedom and justice to our land:

PROUD of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation:

RESPECTFUL of the natural environment that is our heritage, and determined to sustain it for the benefit of future generations:

COMMITTED to nurturing and protecting the well-being of the individual, the family, communities and the nation:

RECOGNIZING 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:

EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution:

ADOPT, enact, and give to ourselves and to our future generations, this Constitution.

However, this is not the gravest problem. According to Donald S Lutz, professor of political science at the University of Houston, one of the reasons for replacing a constitution is that it “may have been changed so many times that it is no longer clear what lies under the encrustations, and clarity demands a new beginning.” This is clearly the case with the current constitution of Kenya. It suffers from a surplus of “encrustations” and these have everything to do with its length.

A study of amendments to the 50 US state constitutions between 1789 and 1991 found a strong correlation between the length of a constitution and its average annual rate of amendment. It is not that amendments tend to fatten constitutions (our current constitution, for example, has lost over 18000 words since 1963, despite undergoing numerous amendments). Rather, the interesting bit is that the longer the original length of a constitution, the more likely it is to experience a high rate of amendment. This is principally because the more provisions a constitution has, the more targets there are for amendment. And, of course, it will tread on more toes and attract greater hostility.

Our independence constitution again bears this out. At 117 pages, its 58,000 words were not exactly a picture of shyness. It has since been amended it at a rate 7.5 times faster than its much slimmer US cousin. The monstrosity we have today is the result. The Committee of Experts though, want us to enact an even longer one this time. Why?

Do the extra pages come from expanded provisions governing social, economic and cultural relations? Not likely. A study by H.Van Maarseveen, and Ger van der Tang, published in 1978 found that the length of a constitution was not determined by the inclusion of such provisions; in fact constitutions with these provisions were actually shorter on average than those without. Perhaps surprisingly, it was the enumeration of these rights in a separate chapter that led to an increase in constitutional length and the draft constitution doesn’t have one.

Or perhaps the blabber results from efforts to be precise. Since over time all governments seek broader powers than first authorized, constitutions should be crafted in a way that carefully enumerates and thereby limits their powers. However, each generation has limited knowledge. A constitution, while enacted by a particular generation of citizens, must allow for evolving norms as a result of succeeding generations having greater understanding. In short, it is a living document. Its language should be as precise as necessary to contain the government while remaining vague enough to allow succeeding generations to interpret it to suit their needs. Too restrictive and you strangle it. It is this balancing act that is the genius of the US Constitution. It has never gone out of date. Its vagueness gives rise to new interpretations, such as the constitutional right to privacy which is nowhere expressly asserted, without having to resort to amendments (which in any case should be rare and difficult).

As in many things, brevity in constitution-making is a thing of beauty. So as we faithfully slog through the draft, let us look for ways we can cut the calories. May it turn out like the mini skirt: long enough to cover the essentials, but short enough to keep your interest.

1 comment:

Githush said...

This is a very interesting post, the length of the draft is quite intimidating. It would seem that in the zeal to deal with all the minutea, we have developed an unwieldy document.

You assessment of the brevity of the American constitution is point on. Your point that "a strong correlation between the length of a constitution and its average annual rate of amendment." is also spot on.

I would add that the difficult amendment process (in the US) also has something to do with the limited number of Amendments.

"Since 1789, over 10,000 amendments to the Constitution have been proposed in Congress. Of those, only 33 were sent to the states for ratification, and only 27 were ultimately ratified"

I also find agreement with your assertion of the constitution needing to be a "living document" though I am sure many on the right would argue otherwise (Strict Constructionists I believe they are called).

The document needs to be short, somewhat vague (obviously we'll need a strong body to interpret it) and have strong provisions limiting opportunities for amendment.

I myself have just printed out the document and hope to spend the weekend trying read and understand it.