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.

Do We Really Need A New Constitution?

In the 90s, amid stringent calls for a people-driven constitution, Kenya embarked on a startlingly unique adventure: to replace its current constitution with a spanking new one. 2 decades and several billion shillings later, the journey seems no closer to completion. Throughout all this, one thing has 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? What's wrong with piecemeal amendments?

In a word: nothing. The 90s debate over "piecemeal" or wholesale people-driven constitutional reform obscured an important fact. The current constitution is itself the result of numerous amendments to the Independence constitution. 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 occasions 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 document. And the attempt to replace it has highlighted another of its core strengths, a prerequisite for any successful constitution: it has proven resilient in the face of 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.

Some will doubtlessly argue that piecemeal amendments would have suited our dear politicians who are only too fond of (ab)using the document to settle their political differences. After all, they would point out, the fact is the majority of the amendments to the Kenyan Constitution have addressed issues that were not of a constitutional nature.

According to “Amending the Constitution -Learning from History”, a paper presented by Dr. Githu Muigai at an International Commission of Jurists conference in 1992, 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."

However, the comprehensive reform route has fared no better. For example, another reason for the constitutional amendments of the 60s and 70s 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. Sound familiar? In this decade we have seen this re-enacted. The debate in Bomas over the proposed powers of the 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, the 2005 referendum was less about the Constitution, and more about the internecine struggles within NARC.

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

Over the last 15 years, we have witnessed a number of amendments that have improved the constitutional climate without requiring referendums and view-collecting. Now, as the Committee of Experts on Constitution Review sets about spending a further 300 million to tell us what we already know, perhaps we should rewrite their mandate. Why don’t they simply propose certain specific amendments to the current constitution, which amendments Parliament could speedily (and inexpensively) undertake? Thus we can quickly ring in badly needed renovations to our constitutional facade before the next elections.