What Wanjiku should look out for in constitution

By Ndung’u Wainaina

The Committee of Experts has released a Harmonised Draft Constitution for debate. It is vital to set out criteria to guide the debate and inform consensus building. A new constitutional order has to underpin new citizen-state relations with power vested in institutions. It may not guarantee good governance, but if poorly crafted, it undermines it.

A well-conceived constitution sets out the basic rights of citizens and the institutions to protect them; it establishes the institutions to provide fair, accountable and legitimate representation of citizens; it defines the authority of governing institutions; and it sets out the amending procedures that will allow the constitution to adapt to new circumstances and needs without clawbacks on the rights of citizens. A workable constitution reduces the level of uncertainty among the population and reduces the perceived risk that a reversal to an authoritarian regime may take place.

Political leaders have a duty to ensure the Constitution is visible as an instrument of governance that safeguards citizen sovereignty. When they make policy decisions without regard for openness and accountability, or to accommodate private interests, people will lose their respect for constitutional government. The President and Prime Minister have a responsibility for constitutional development.

Certain principles must be reflected in the final constitution. First, it must be inclusive of all the citizens. This is particularly important in a society that is divided along ethnic, religious, cultural, gender and income lines. Indispensable elements of a democratic constitution include expanded and enforceable rights, rules and procedures to govern the actions of officials, and procedures for guaranteed exercise of democratic right of electing government and policies of personal choice without violation.

A democratic constitution has two central elements: a statement of fundamental values that the country aspires to hold or achieve, and a social contract among citizens, and between them and their government. It must have enough continuity and stability that it is understood as a stable set of rules and principles of governance. It should, thus, not be easy to change.

However, it should still be flexible enough to change in response to new circumstances. Amendments should not be too frequent or subject to the whim of transitory majorities. They should only be made by supra-majorities that ensure broad consent.

Simple arithmetic

A democratic constitution should be part of a global movement toward democratisation, which is reflected in the growing importance of international laws and treaties. The constitution must also reflect the specific historical and cultural circumstances of the country. It is only sustainable in the long run if it is backed by a deep commitment to constitutionalism by citizens and leaders.

The new order must address equal citizenship rights, guarantee inclusi-on in democratic processes; build institutions that support democracy; build and sustain democratic opposition; and have explicit provisions on the scope of emergency power.

We must avoid two sets of problems: First, an insecure majority that represses or dominates the minority. Second, a situation in which an insecure minority is tempted to rebel or secede. To address these effectively, the new constitution must uphold the fundamental principle of equal citizenship; rights must apply equally to all citizens; majorities must avoid any temptation to define the nation in ethnic terms; the Bill of rights must reject any forms of negative discrimination against any minority or disadvantaged groups, and there must be recognition of positive rights for minorities and responses to diversity.

We have to aspire to build institutions that support democracy. Strong and independent institutions will act as guardians of new democracy.

The writer is Executive Director, International Center for Policy and Conflict.

 

 

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