Dilemma of constitution making

By Yash Pal Ghai

A major reason, after efforts of years and the expenditure of billions of shillings, a new constitution has eluded us is that influential sectors of society (parliamentarians and churches) have shown little respect for constitution making.

Kenya adopted detailed legislation on the objectives of constitutional reform and the procedure for constitution making. The objectives and procedure in 2000 Review Act were the subject of intense negotiations, involving the Government, civil society and many other groups, leading to wide national consensus. Likewise the 2008 Act was the outcome of intense negotiations, though this time restricted to politicians because of post-election violence and international mediation.

The 2000 Act mandated consultations on a wide agenda of reform, while the scope of the 2008 Act was restricted to "contentious issues". In both cases, there were ample opportunities for recommendations by individuals and groups. Review organs had to base the draft on the views of the people. Responsibilities of the different organs, the rules for making decisions, and the sequence of the process were specified. Although the 2000 process started with general agreement on objectives and procedure, there were built-in mechanisms for resolving differences. As with the CoE, the CKRC had to decide by consensus, only failing which would a decision be made by two-thirds vote. The same rule applied at Bomas, but if a motion did not obtain the two-thirds vote, and the issue was essential to decide, the Bomas conference could order a referendum. In fact all issues were resolved by a two-thirds vote. The 2008 Act specifies rules for decision making in the CoE and the National Assembly, with the two-thirds vote if there is no consensus. In fact the CoE made all recommendations by consensus. No one can doubt the fairness of either process.

Maximise support

The objective in constitution making is to maximise the support of the people for the constitution, consistent with the status of a constitution as supreme law and the source of state authority. Another reason for wide support is that an important role of the constitution in a divided society, like Kenya, is to strengthen national unity and solidarity. The constitution should bring people together through agreeing on common values and goals, rather than divide them. Hence the emphasis on consensus. But consensus is not unanimity, which gives any member power to torpedo the process. The desirability of consensus must be weighed against the necessity to achieve a constitution.

Today, where a constitution covers a much wider ground than in earlier periods, when it dealt primarily with the system of government, differences are inevitable. In addition to promoting nation building through defining people’s identity and values, contemporary constitutions deal with fundamental reform of the state, and even society, and social justice. Inevitably, some groups are threatened by the agenda of social and economic reform, and naturally resist it. Another reason is that many constitutions are faced with problems of multi-ethnic states, with people’s strong attachment to their communities, professing different religions or no religion, espousing fundamentally different values, and in competition with each other for access to, or control over, the state. Thirdly, constitution making has become inclusive and participatory. Not only individuals, but also communities participate in the constitution making process, each advancing its own claims, whether based on history or present deprivation or entitlement. Finding common ground is thus highly problematic.

This problem is compounded by the fact in both the 2000 and 2008 processes, the draft constitution had to be drafted or examined and approved by different institutions — in the case of the CKRC, by three bodies, to which then Justice Aaron Ringera added the referendum, and in 2008, by a similar number.

Because of these difficulties, it is necessary, for the sake of both justice and expediency, to balance different interests. Kenya’s processes were designed to promote national unity by accommodating our diversity.

These approaches would reduce the number of contentious issues. In Bomas, the Kadhis’ court issue was resolved by paring down the more expansive terms of the CKRC draft. The bill of human rights nicely balanced the interests of the individual and the community. Similar compromise informed land provisions. But more importantly, we should solve contentious issues within the framework of the process. It is a framework that we have agreed on, after long and painstaking negotiations. The trouble in Bomas was that the then Justice minister and Vice-President walked out when they sensed the majority was against their positions, without exhausting mediation. The Judiciary, which had at earlier tried to stop the process, was then invoked by interested groups to declare the whole process unlawful, when it was more or less concluded.

We now see similar tactics by the ‘No’ campaign. We gave the Committee of Experts the authority to decide what were contentious issues, which it did after carefully following the prescribed procedure. Now we are questioning their decisions. As the CoE noticed in its November 2009 report, we are becoming a nation that generates contentious issues, using spurious arguments to hide the real motives for sabotaging the process.

They are rushing to the constitutional court to stop the process on issues not raised during the process. In the name of the people, they are denying the people opportunity to choose.

—The writer is former chairman of CKRC.