Let's guard against law review which addresses short-lived objectives
In 2001, the Yash Ghai and Ooki Ombaka led the Constitution of Kenya Review Commission (CKRC) went round the country collecting views on the Kenya people wanted reflected in the proposed new constitution. After visiting every corner of the country, they came back dejected. They published their interim report in which they identified four issues that characterised Kenya’s complaints about the state of the nation.
Kenyans from every corner of the country, from Gatundu to Kabarnet felt excluded, distant from their government, disempowered and the victims of inequity. These four issues were to define the drafts of the Constitution that followed; the “people’s choice” CKRC draft in 2002, the Bomas draft in 2004, the 2005 Wako draft, the various harmonized drafts in 2008/09 and the final Constitution that was adopted in 2010.
I regurgitate this history in the context of the ongoing constitutional review debate that is now at the centre stage of public discourse. While the debate is packed with ideas, starting from Dr Ekuru’s punguzaing
to the Handshake’s BBI process, there has been little attempt to identify, from a constitutional reform perspective, the clear impetus for amending the Constitution. Indeed, even the nine issues identified by the BBI communique in March 2018 spend little ink on constitutional reforms. It is however clear that we are headed to constitutional changes, though we seem unaware of what those changes are. As everyone will know, there are as many variations of constitutional content as there are constitutional law theorists. At every stage, it is possible to keep people busy drafting and redrafting constitutional systems and processes, consistently appearing to be addressing emerging issues.
The challenge with this process, which is where Kenya appears to be, is that it keeps us from asking the fundamental question; what are the objectives being sought by the amendments that cannot be met by the existing process if we were faithful to it in letter and spirit? Because the current process is driven primarily by political actors, that question is treated like an irritating inconvenience whose answer is irrelevant. Unfortunately, the non-State actor community, which used to define the principal themes of any reform, are as lost as everyone else.
Listening to groups appearing before the BBI, including my own Law Society of Kenya, one would imagine we are writing a new Constitution, having implemented the existing one to its fullness and now curing its defects! People easily forget that in 1997, it was the Kenya Human Rights Commission, the International Commission of Jurists and the LSK that produced the first “proposal for a model constitution.”
The framework for future constitutions would be guided by this initial draft. In the years of constitutional reforms in the first decade of this century, all reformists congregated around the 4Cs coalition and were clear on what the “irreducible minimums” of any reform effort would be. The non-State actor community recognised that politicians are concerned with creating and protecting space for themselves in any constitution. Rather than fight with the politicians on the appropriate model, they allowed the politicians to do their thing and fight over positions, but never lost focus on the irreducible minimums.
What, today, as the politicians fight for expanded space at the top and other dividends, which they will most probably ram down our throats, are the citizen’s irreducible minimums? How do we ensure that these irreducible minimums are consistent with the CKRC findings in 2002, the reduction of inequity, inclusion, not of politicians at the top of the trough but of the people in the social, political and economic life of the country, the empowerment of the citizenry and the closeness of the government to its people? If we fail to achieve this, we will soon have constitutional amendments which addresses transient political problems, while leaving these four fundamental challenges unattended. The future will judge us harshly if we allow this moment to pass without defining and pushing our minimums.
- The writer is an Advocate of the High Court of Kenya
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