IMPERATIVE OF JUSTICE

If there is one fundamental theme of the new constitution, it is justice. Most of its provisions and institutions can be tested by the criteria of justice, for their propensity to promote or achieve the objectives of justice. The foundations of the colonial state which lie at the root of our problems survived the colonial rule. The colonial system was without justice; the wide scale on which people’s rights and property were violated left grievances and suffering unresolved to this day. The independence constitution aimed at establishing a state based on principles of democracy and justice, but with a complexity born of the lack of trust among ethnic leaders. However it was promptly demolished by Jomo Kenyatta, setting the stage for him and his successors to continue oppressive and corrupt colonial practices. The Constitution of Kenya Review Commission heard from people many stories of injustice going back a century and half - theft of land and other property, communal violence, politically motivated killings and displacement of people, torture, discrimination against and exclusion of minorities, a perverted political and legal system under which impunity flourished. Many people felt alienated from the state because of the failure of justice. They wanted the constitution to redress these past and continuing injustices.

SPHERES OF JUSTICE

The constitution is a response to these demands. Through its conversations with the people, the CKRC realized how multi-faceted justice is. It operates in many spheres. On the one hand there is the Platonic and Aristotelian, or in modern times, Rawlsian and Walzerian, notion of justice where the focus is very broad: the structure of state and nature of political leadership. At the other end is the technical aspect of law and its enforcement, particularly the fairness of trials. In between there is question of justice in the social structure of Kenya’s communities, and in the relations among them, equal opportunities, the allocation of resources, access to basic necessities, human security, and so on. Nor can we ignore justice between generations - or the responsibility of our own generation, charged with making the constitution, to both past and future generations. We cannot ignore past injustices nor can we disregard the consequences of our present policies for future generations, particularly concerning natural resources and environment. Our presidents and their cronies have been notoriously bad at this; stripping away our forests, ruining our beaches, increasing desertification. Even contemporaneously, what are society’s obligations to children and the elderly? Girl children and women have in almost all Kenyan communities suffered discrimination and exclusion, a fate replicated largely in the public sector. And if the constitution must protect weak and vulnerable workers, what are the legitimate claims of the employers that it must deal with? The growing disparities of wealth and opportunity raise dilemmas of another kind: the protection of property versus, if not egalitarianism, at least the satisfaction of basic needs. But poverty raises other fundamental constitutional issues: rights to life, equality, dignity, education, sanitation, participation, access to justice, and so on.

The CKRC became aware of these and other spheres, meanings, and perceptions of justice. Kenya’s national anthem (now constitutionalised by Article 9(2)) says ‘Justice be our shield and defender’. Here justice seems to refer to the supremacy of the law, its autonomy and impartiality, which protects us from the capriciousness of power, both public and private. The preamble of the constitution honours heroes who ‘struggled to bring freedom and justice to our land’. Here perhaps justice refers not only to the impartial administration of the law but also to general fairness in state and society. The preamble also recognizes the ‘aspirations of all Kenyans for… social justice’; and among the values and principles of governance in Article 10 is ‘social justice’. The addition of the word ‘social’ points to yet another dimension of justice - this time focusing on society and the obligations of the state to ensure fairness between groups, rather than just individuals.

JUSTICE AS BALANCING CLAIMS AND INTERESTS

Kenya’s history, the diversity of cultures, religions and ethnicities, and the clash between traditional and modern values, often within the same community, alerted the CKRC that the worth of particular rules, rituals and practices can be perceived differently by its communities or social groups. This fact assumes a special importance in the Kenyan context where the state has been used, from colonial times to the present, to privilege some communities and religions and to marginalize others. This has caused great resentment among the marginalized, who feel alienated from the state, and arrogance among the privileged who think the state belongs to them. I have already said that the constitution had to address justice between communities, not just individuals. Kenya’s constitution needed to serve two critical functions: nation building and state building. Questions of justice belonged to the former, in terms of values, rights, citizenship and relationship among communities, while to the latter belonged institutions for representation, power sharing, accountability, litigation and so on. Conceived in this way, justice is not only about the claims of individuals, but about the building of national solidarity, bound by common values and a commitment to fairness for all - and institutions faithful to these principles and goals. With that aim the constitution tried to create and promote a common understanding of justice and fairness; and to disallow certain forms of loyalties, etc. (e.g., tribalism, or impunity) or some local ideas of justice; and produced a vision of Kenya as ‘an open and democratic society based on human dignity, equality, equity and freedom’ Art. 20(4) (a).

However, it will be clear from the above account that the pursuit of justice required that the constitution should balance many different, often competing, claims and interests, close perhaps to what Michael Walzer has called ‘complex equality’ in his book, Spheres of Justice. But what framework should be used to make the balances? Contemporary ideas of justice, closely connected to equity, ethics, fairness, due process, recognition of diversity, respect for difference, compensatory justice, and the nature and quality of leadership, are themselves a little protean. If we use the framework of human and group rights, which might seem sensible since recent developments in the concepts of rights do respond to some of the concerns identified above, we would occasionally have to make forays into spheres of political and economic justice.

NEGOTIATED JUSTICE

To a considerable extent, the constitution was a negotiated document, at different stages, which introduced a degree of pragmatism, through concession and compromise. But it was not often necessary to stray far from the initial agreement on values and principles, worked out largely by civil society organizations, and incorporated into the legislation for the review process. So now the alert reader of the constitution will notice that many articles, as the preamble itself, are a careful balance of the general and the particular (for example, national identity with local affiliations), of the parochial and the national (as in devolution), the respect for difference and the necessity of universal norms (as in arrangements for the application of Muslim law), and equity and efficiency (as in land policies).

This method of making the constitution was far removed from John Rawls’ prescription, of the ‘veil of ignorance’, where the decision makers know not whether they are Kamba or Luo, pastoralist or agriculturist, resident of Muthaiga or Mathare, woman or man, marathon runner or confined to a wheel chair, unemployed youth or a well heeled capitalist, Nubian or Kikuyu, Christian or Muslim. Ours was a highly contested and negotiated process based on the interests of participants - but within a broad framework of values elaborated through an earlier round of negotiations, grounded on notions of fairness and solidarity, mindful of fortunes of the marginalized.

IN THE STATE OF JUSTICE

Justice is often conceived of, certainly was traditionally, as limitations on state power, the state performing a relatively passive role, holding the ring, a night watchman. Civil and political rights (freedom of expression, association, assembly and marches, sanctity of property and contract, an independent judicial system) emanate from that ideology: keeping the state at bay. Economy was largely the domain of the private sector; as was the welfare of the people. The state’s role was to interfere as little as possible in the affairs or transactions of the people; people knew what was best for them, and entered into transactions for their own profit, which the state (particularly the courts), was to protect and enforce, not set aside. Things were not quite like that in practice - the state was seldom neutral, but a proxy for politically and economically powerful - but the ideology served a useful purpose, obfuscating underlying social and economic realities. To some extent the independence constitution was based on those assumptions, with few provisions for public welfare.

The state of justice today, at least in the Kenyan context, cannot work in this way. I have already mentioned the balances that must be struck between competing interests and claims; for this the state must be engaged, not passively stand by. We have inherited a situation of acute differences in access to the state, appalling disparities of wealth, income and opportunities, which have served to privatise many public functions, transferring power to propertied classes. Land grabbing has been a principal source of accumulating wealth and peddling influence - all key politicians and their cronies have prospered in this way. Money has been siphoned off in other illegal ways to the same class. Millions of Kenyans are landless, crammed into slums. There is massive unemployment. Few people can afford one square meal a day, or adequate medical care or quality education. There is little confidence in the machinery of justice. State armed forces or economic sanctions have been used illegitimately to bring the defiant to heel.

In these circumstances the constitution has provided two critical conditions for the justice agenda. The first is authority for general and specific measures for economic and social reform: tools of justice. Key to that is a wide ranging bill of rights which changes the equation between citizen and state. Rights are ‘the framework for social, economic and cultural policies’ and their role ‘is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings’ (19(a) and (b)). There are strong equality provisions as well as compulsory affirmative action for the disadvantaged. Poverty must be alleviated, at least in the short run, by implementing socio-economic rights, guaranteeing all bare necessities. Illegal acquisitions of property must be restored to the state, and equitably distributed to those in need. Community land is restored to the community, from the county councils. Other historical injustices must be redressed. The state must address the needs of, among others, the disabled, and members of minority or marginalized communities. People must be given access to services wherever they live. Discriminations under customary law against women, including in relation to property and inheritance are now abolished.

The second condition is a state which is hospitable to these objectives; that is aimed at by the restructuring of the state and rules and procedures whereby state power is exercised. All state organs have to reflect the diversity of Kenyan people; power must be shared between the national and country governments; people have the right to participate in public affairs, including law making; the president is to be more accountable to parliament and independent authorities. Qualifications for public office have been tightened, including high standards of integrity. The ethos of all public officers, from the president down, is service to the people. The constitution has brought major reforms in the machinery of justice: independent, competent and honest judges; a distinguished Supreme Court, and an independent prosecutorial system. Judges have strict instructions in the constitution to exercise their power to promote human rights and other national values and principles.

CONSTITUTION, STATE AND SOCIETY

There is no doubting the commitment in the constitution to justice. But a constitution cannot guarantee its own effectiveness. Kenya’s constitution was imposed by the people on a recalcitrant legislature and government. They are still sitting in seats of power, entrusted with the responsibility for its implementation. They will do everything in their capacity to sabotage implementation. They control not only the state, but also key sectors in society: through bribery, commercial and financial empires, manipulation of ethnicity, intimidation, armed force, and more. The constitution does however offer openings and opportunities for people to bring about change, such as participation, petitions, sensible use of the vote, contesting for public offices, resort to courts, and solidarity. Who will win the battle? It is too early to say, but people seem to regard the constitution as their friend, and show some determination to implement and protect it.

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* Professor Yash Ghai has many years of experience as a law teacher, and has written many books and articles about constitutions and human rights. He has advised around 29 countries about making or revising their constitutions. He chaired the Constitution of Kenyan Review Commission (2000–4) and the National Constitutional Conference (BOMAS). Now he is active in civil society, especially in matters related to the implementation of the constitution.
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