Perils of constitution making by politicians

By Yash Ghai

Constitution making is a complex process the art of which is drawing upon the participation of various groups — experts, politicians, and the public — in a balanced way. The 2000 process was agreed upon after long negotiations in Safari Park and based on the contribution of all these groups to secure a constitution with wide legitimacy. With some oversimplification, we may say that the CKRC phase represented the professional stage, when independent experts, in consultation with the people, and in accordance with national goals, prepared a draft constitution.

The second phase was the stage of deliberation and consensus building, through the representatives of the people, regions/communities, and civil society. In the final, parliamentary phase, politicians had a veto, against logic and democracy.

It was illogical because all the MPs were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, democratic and legitimate body than Parliament.

Public consultations

The current process was designed by politicians to suit themselves. Unlike the 2000 process, which was ‘people driven’, this one is ‘politician driven’, notwithstanding the Committee of Experts and pretensions of public consultation. Nowhere is this more evident than in the deals done in Naivasha last week by the Parliamentary Select Committee (PSC).

In reopening proposals that have received wide support of Kenyans throughout our long constitutional odyssey, the PSC disregarded the limits on its mandate in the law it had itself promoted. It ignored the rule that it was up to the CoE, not itself, to identify contentious issues. It also ignored the legislative injunction that all institutions of review should reflect the view of the people.

Some may feel relieved that politicians have now got the most contentious issue, the executive system, out of the way. But, one may ask, why should this be a matter solely for politicians? It is sometimes said that the system of government is a political question and should be left to politicians. It is not only a political question; it is also a social and economic question, for much hangs, for society, on the system of government. Politicians will approach this issue in a self-interested way, where others will approach mindful of the national interest. Leaving the final say to MPs is unwise, as our experience of recent years has shown.

A constitution deals with many issues which are the concerns of the wider community of citizens, including the vision of the country, honest and effective administration, protection of individual and communal rights, social justice and fairness, the rights of the disabled, and safe custody of the environment and the welfare of future generations.

It is critical that for proper, informed decisions on these matters, the decisions, and commitments, are made by a broad cross section of the nation. Experience in Kenya and elsewhere shows that politicians have a narrow interest in the constitution, concentrated on access to State power, and their own personal prospects of securing that access.

Ministers’ allowances

If I think of the performance of most politicians, including ministers, at Bomas (and about half of whom barely ever entered Bomas, except to collect their allowances), they showed almost no interest in human rights and social policies, including environment and land policies. But they were passionately opposed to popular participation in and controls over the exercise of State power. They had little time for fair administration and public accountability of State officials.

The broad areas that interested them were the system of elections, the structure of government, and the devolution of power — and underlying these were individual and group advantages and disadvantages to them under proposals on these subjects.

Politicians have common interests as a class: salaries and allowances, tax-free receipts, and minimising accountability to constituents. But they also have competing interests, principally related to access to power. Both the common and the competing interests were amply evident in Bomas.

They achieved much in defending vested interests (deleting provisions in the CKRC draft on accountability, parliamentary salary determination, recall of MPs, and ministerial appointments from outside Parliament).

But they were deeply divided on questions of State power and access to it, and particularly so because of the post-2002 election history, which meant that, even the Cabinet was not united. Ultimately their differences, some even personalised, in the sense that individuals’ analyses of their chances of power under a particular constitutional structure directed their strategies in the process, led to its sabotage.

This history suggests that there are good reasons why politicians should not be permitted to play such a decisive role in constitution making. Each politician, or at least each political party, will aim at provisions, which ensure their access to power. A recent study has shown that when a party feels that it has majority support or that its leader is charismatic or highly popular, it would lobby for a presidential system and a party with weak support will lobby for a parliamentary executive. Similarly small parties will support a proportional electoral system while large parties support a majoritarian system. And chances are that politicians of all hues will resist accountability mechanisms, restraints on their benefits as parliamentarians or ministers, or measures of participatory democracy.

Majority ethnic parties will support unitary government while minority ethnic parties will favour federalism or devolution.

The ease, with which politicians change their parties, at least in Kenya, demonstrates that they are totally unconcerned about questions of policy, integrity, and effectiveness. Important decisions about the structure of the State should be made after careful comparative analysis of the logic of different systems, not to suit temporary conveniences of particular politicians or political parties. Since the constitution is so important to the personal interests of politicians, allowing them to determine it is like making them judges in their own case. As early as the late 18th century the French Assembly tried to restrict, for a few years, the eligibility of constitution makers to hold State office.

Ruto’s support

I note with interest that Mr William Ruto emerged in Naivasha as an ardent supporter, if not actually architect, of the proposal for a presidential system.

At Bomas, then inseparable from Prime Minister Raila Odinga, he fought, with his usual tenacity, against proposals which leaned in favour of presidentialism, arguing, his eyes moist, that he had been a life-long champion of the parliamentary system (presumably even when he sat in Moi’s presidential Cabinet) and pleaded with others not to force him to abandon that faith.

His intervention destroyed the consensus that key political and civil society leaders had negotiated the previous night.

The most distinguished political scientist writing on constitutions, Jon Elster, once said that a constitution is the rules with which we, in our sane moments, bind politicians so that in their insane moments they do not cause havoc. But what if politicians make a constitution in their insane moments?

—The writer Prof Yash Ghai is former chaiman of defunct Constitution of Kenya Review Commission