Will the Harmonised Draft Constitution by the Committee of Experts (CoE) become merely another milestone in our never-ending constitutional journey or herald its end? Whether it leads to a new constitution depends fundamentally on what the people do with it. They now have less than three weeks to study and comment on it. It will then go to parliamentarians who may amend it before it becomes back to the people in a referendum. At that stage they will have a limited choice: they can approve or reject it. Now however, they can influence its contents, for the Constitution Review Act enjoins the National Assembly and other organs of review to 'ensure that the outcome of the review process faithfully reflects the wishes of the people of Kenya'. The purpose of this article is to enable Kenyans to evaluate the Draft Constitution and encourage them to submit their views to the Committee so that the draft which the National Assembly receives 'faithfully reflects' their wishes. Even those who agree with the approach and substance of the draft have an obligation to tell the committee of their approval.

The draft has all the key components to usher in a new political and social order based on democracy, rights and justice. It will remove the main defects of the present constitution which prompted the journey for constitutional reform. It also fully implements the objectives of reform set out in the Review Act, which are similar to the 2000 act. The main defects of the current constitution, as told to the CKRC (Constitution of Kenya Review Commission) by the people, are: (a) too much power concentrated in the hands of one person; (b) too much power and decision-making concentrated in Nairobi; (c) inadequate accountability (of the president, members of parliament, officials generally and the police); (d) inadequate prevention and control of corruption; (e) absence of guarantees of equal and fair use and distribution of national resources; (f) inadequate recognition of Kenya’s diversity; (g) inadequate recognition of the rights and concerns of vulnerable groups, including certain marginalised ethnic groups and persons with disabilities; (i) discrimination against women; and (j) generally, inadequate protection of human rights, and the total absence of those directed at meeting the basic needs of the people, the majority of whom are mired in poverty.

The rigging of the 2007 elections and the post-election violence not only bore out these criticisms but also highlighted the political culture that the constitution has nourished: the greed for power; disregard of the law; exclusionary politics and practices; the ready resort to violence; the politicisation of ethnicity; the undermining of independent institutions; and the total loss of confidence in state institutions, particularly the judiciary. Like a discredited and bankrupt company, we had to call in administrators from outside to keep even a semblance of a state – our ultimate national humiliation. It was generally agreed that just as a bankrupt company needs to be re-organised, our state needed to be restructured, with the help of a new constitution. The question I explore is whether the draft provides us with a framework for resolving conflicts and the suffering that have afflicted us for all of our post-independence history, for the growth of a culture of public responsibility and integrity, and the promotion of a sense of social solidarity that transcends tribes and defines us as a nation.

VALUES AND VISION

The draft, consistent with the objectives of the Review Act, incorporates critical ethical and national policies and provides an appealing vision of Kenya and its people. It aims to establish a state which is committed to the public good, seeking responsible and honest leadership, and setting high standards of integrity for politicians and public servants. The state exists for the 'well being and benefit' of the people. It sets as the objective of the exercise of state power to serve, not to rule, the people. It defines the relationship of the people to the state through the concept of an equal and active citizenship, not subjects but masters of the state. It empowers the people, encourages them to exercise their political rights sensibly and take responsibility for the democratisation of society, through active participation in the affairs of the state and by demanding accountability from officials. Power is not the monopoly of any group or region; it belongs to all the people and must be exercised in locations and through institutions and procedures that are both accessible and meaningful to them. The draft commits the state to the recognition of the role of civil society in governance in ensuring the accountability of government. It promises an open society, where debates on public issues are encouraged and power is exercised in transparent ways.

The draft demonstrates an admirable concern with human dignity and the rights of individuals and communities. It is particularly concerned about the inclusion and welfare of the disadvantaged and victims of prejudice and discrimination: women; the disabled; minorities and marginalised communities. It seeks to provide for all a life of dignity, and the ability to meet basic needs and to be protected from the humiliations, deprivations and vulnerabilities of poverty. It recognises the special needs of specific communities, moulding the Bill of Rights to a society with differing values and lifestyles, respecting identities that give them a sense of their own worth. It reminds us of our obligation to future generations through the careful husbanding of our resources and the protection of the environment. The Bill of Rights is without doubt the most comprehensive and humanistic of any constitution anywhere, with a careful specification of the permissible limits on rights, effective machinery of access, remedies, and enforcement, and links to the international and regional mechanisms of the protection of human rights.

The draft is animated by the mission of unifying us as a nation and strengthening our unity. The first of the national values is the 'promotion of national unity and the commitment of all citizens to the spirit of nationhood and patriotism'. While fully recognising our diversities of religion, language and traditions, it constantly balances them with national solidarity and our common concerns and hopes as a people. This balance is manifest in political structures and distribution of power and resources, as well as in the concept of citizenship, which are a great improvement on the current rules. National unity is also to be promoted through the 'elimination of disparities in development between the various parts of Kenya and sectors of society' as well as equal opportunities of access to state services and economy. Given the current fragmentation of our society into hostile camps due to the ethnic politics and incitements of the politicians, and the bitter memories of communal massacres and other injustices that many Kenyans live with, national reconciliation and solidarity must be, and is in the draft, the highest mandate and goal of the state and society.

TRANSLATING THE VISION INTO REALITY: STATE STRUCTURES AND POLITICAL AUTHORITY

The draft provides values and a vision suited to the predicament facing us. But the question is whether these values will materialise even if the draft becomes law. Some of these values are perhaps non-justifiable, that is to say, not enforceable in the courts. Others may falter because of the lack of will or courage of judges and other institutions charged with their implementation. Unless there is a serious commitment to the values on the part of those who gain control of the state, these values will elude us. It is therefore necessary to study the logic and dynamics of the structure and institutions of the state, to examine what pressures and compulsions they are likely to generate on office-holders to uphold values and implement policies such as in the draft. It is well-known that unless state institutions are 'human rights friendly', few liberties will be protected, however grand the Bill of Rights. So we have to turn to the design of the state and the allocation of powers in the draft.

INDEPENDENT INSTITUTIONS

It is not possible to analyse all the institutions provided in the draft, but it is evident from the draft that serious consideration has been given to the institutions and the distribution of power. Tasks which are politically sensitive (like elections or the auditing of state accounts), or require special skills (like the environment and land), or need impartiality (like the appointment of judges or the enforcement of codes of conduct or integrity) are entrusted to independent commissions. Our experience of the electoral commission and the judicial service commissions are not encouraging, but the commissions under the draft are designed to be more independent than under the current constitution. And if they operate under a more 'separation of powers' system, they may be better able to assert their autonomy.

IMPORTANCE OF LEGALITY

A fundamental weakness of our constitutional system ever since independence has been the absence of the rule of law. Under successive attorney-generals and chief justices, a culture of impunity or coercion (depending on which in the particular instance served the interests of the president or other favoured people) has flourished. The continuance of this culture would be the greatest threat to the implementation of the values of the draft, negating the status of the constitution as the supreme law of the land. The Draft addresses this problem head-on, even to the extent of requiring that all judges should either step aside or be subject to a vetting process and the retirement of the chief justice and the attorney-general. It provides a more independent machinery for the appointment of judges, and vests the prosecutorial powers in an independent official. Access to courts and to defence is secured through a new, independent institution, the office of public defender. The police will come under a measure of civilian control but not to the extent of being told what to do in particular cases. This framework offers the prospect of respect for legality, strengthened by the renewal of key legal and judicial offices.

DEVOLUTION

However, the critical institutions are those of government, the executive and the legislature. It is here that the draft is most radical. First the draft proposes a fundamental restructuring of the state. The highly centralised state is to be broken into vertical layers of authority, through the establishment of regions (replacing provinces) and counties (replacing districts).

This form of devolution is intended to achieve various political, social and economic goals: by enhancing the quality and practice of democracy by bringing power closer to the people and increasing arenas of participation and policy-making; by enabling greater responsiveness to local needs and opportunities; by establishing new centres of economic growth and breaking the stranglehold of Nairobi; by achieving the recognition of cultural diversity; and by promoting the more equal and equitable development of regions and counties. Devolution provides not only new centres of authority and policy-making, but also involves institutions for coordination, cooperation and equalisation across the country. Devolution can also ease the intensity of national politics, by dismantling one centre of power for which all (essentially tribes) compete in a winner takes all game, and establishing more centres where political battles can be won and lost. Where a region is composed predominantly of one ethnic group, local autonomy will be less likely to solidify it than to create or multiply political factions within it, which is good both for democracy in the region and for prospects of cross-regional cooperation (as India’s regionalism illustrates).

This is the rosy picture of devolution. But there is also a dark picture, one being strongly argued by the supporters of a centralised state: the creation of new minorities vulnerable to the ethnic tyranny of the local majority, even displacement; the ethnicisation of politics; the weakening of the national identity; confusion in the division of powers and responsibilities, resources and revenue; the waste of money expended on new governments and institutions; powers abused or unutilised because of lack of capacity; an increase in corruption with even fewer safeguards and less scrutiny than at the national level.

Both scenarios are plausible. Devolution is a set of powers and institutions; what values and policies are deployed through them depends less on the law than those who administer (or mis-administer) the law. The establishment of devolution or federalism is generally difficult, and takes time and patience for it to take root and give harvest. Local people can just as easily be disenfranchised as franchised. It is therefore critical to proceed with caution. Perhaps it is not the time to entrench a detailed system, which to some extent the draft does. A set of principles and layers of authority need to be guaranteed now, with some specification of powers and resources, but the full system must grow out of experience and expert advice. Certainly, the provisions on devolution need the most careful examination, and considerable revision.

REPRESENTATION

Bomas gave prominence to the representation of the people, with a separate chapter of that name, and the new draft basically retains that. But Bomas did not tackle the problem of the electoral system, which is defective. We have single-member constituencies with the 'first past the post' system, which generally produce legislatures that are not proportionate to the voting support of the parties overall. In Kenya there is a great disproportion also between the size of constituencies, which increases the distortion in the overall result. It is not unknown in countries like the United Kingdom for a party to win an election, because it obtains the largest number of seats, even though more people voted for another party. In 1997 about 37 per cent of the national vote gained the Labour Party about 54 per cent of the parliamentary seats. The smallest constituency (in population size) in the UK has 22,000 registered voters and the largest 110,000. The discrepancies in Kenya, however, are much greater. And, with a parliamentary system of government being proposed, the electoral system has become a source of anxiety for communities that feel themselves seriously under-represented. If Kenyan moved to a rigidly 'equal population' system it would either have to have a ridiculously large parliament or the sparsely populated constituencies, with poor communications, would have to be enormous.

Many countries in the world (about 36 per cent of the countries) use proportional representation (PR) systems and another 30 per cent used mixed systems involving both directly elected and proportional seats. The CKRC proposed a mixed system: the Mixed Member Proportional system, used in Germany and New Zealand among others. The Kriegler Commission raised some objections to this, about which there is no space to elaborate. But Bomas rejected this: many people did not understand it, few took the trouble to understand it and many confused it with the discredited 'nominated MP' system now used for 12 members of the National Assembly.

Although many have suggested some sort of PR, the CoE chose not to make any changes. Perhaps changing to some PR system would also take some of the heat out of the parliamentary/presidential debate. A full consideration of the voting system must also take into account its effect on the structure and functioning of political parties, integrative or fragmenting effects, and the impact on the formation and operation of the government. Neither Bomas nor, as far as one can tell, the Committee of Experts paid much attention to these important matters.

Unfortunately, like the current constitution, the draft makes it impossible to move to any other system without a constitutional amendment. Would it not be possible to have principles about constituencies applicable if relevant only, leaving it to parliament to introduce a new system without requiring the complex procedure of constitutional amendment? Or would it not be even better to try to devise a rational system now – since a parliament elected by one system is unlikely to want to change it?

LEGISLATURE

A number of provisions seek to enhance parliament’s capacity for law-making, powers of accountability, greater scrutiny over state finances, the promotion of public engagement in its functions, providing a role in the appointment of senior state officials, and greater control over the executive due to its power to remove it by a vote of no confidence. Some of these reforms, flagged in the Bomas Draft, are already law and have led to the more active role of parliamentarians. The adoption of the parliamentary (cabinet) system of government will greatly enhance the powers and prestige of the legislature.

EXECUTIVE

Politically, the most radical and also the most controversial proposal is the shift from a presidential to a parliamentary system. It is also an area where the debate is singularly ill-informed by principles or knowledge of comparative experience. It is essentially driven by the ambitions and greed of politicians, regardless of political or social consequences. The arguments for a parliamentary system that impressed the CKRC were the abuses of powers by the two presidents who had ruled Kenya by then: illegal accumulation of land and other resources of unimaginable proportions; the impoverishment of the many displaced persons; torture and illegal detention of opponents; the abolition of the freedoms of expression and association; the attrition or removal of independent institutions –all these were the cause as well as the result, in a vicious circle, of the extreme personalisation of power, the complete negation of legality. The strange hybrid system in which the president, with all executive power was also an MP, along with the cabinet, seemed to lack the underlying principles of the separation of powers or good governance. Moreover, presidential powers, exercised arbitrarily, seemed to give one ethnic community a special hold over the power and resources of the state, notwithstanding that only his cronies benefited. These policies highlighted the centrality of the state as a resource, and high prize that comes with its capture. These practices, facilitated by presidential powers without accountability, have powerfully and negatively shaped Kenyan politics and become a major obstacle to reform, particularly from those who feel that with the support of their ethnic community and affiliated groups, they can retain or capture state power.

The supporters of parliamentary government argue that it is a more collective form of executive, and can be a form of power sharing, thus reducing tensions that come from ethnic competition over the presidency. The collective nature of the executive through the cabinet means that reducing the debate to whether the president or prime minister should have primary power is to obscure the fundamental differences between the two systems. Supporters argue that the cabinet system encourages the growth of disciplined political parties and facilitates the continuous accountability of the executive to the legislature because of the possibility of a no-confidence vote. It enables a government that has become unpopular or inefficient to be removed even if in mid-term (not possible in a presidential system) and thus permits a government with greater legitimacy. Most countries of the world which are stable, prosperous and democratic, with the exception of the US, are parliamentary – certainly the two most democratic (and relatively well-off) states in Africa are parliamentary, South Africa and Mauritius.

As with devolution, there are two sides to the debate about the executive. Parliamentary systems can be prone to instability (as well as unruly coalitions) as well as prime ministerial domination. There are constitutional devices which can introduce stability in a parliamentary system as well as temper the dominance of the prime minister, but these are not reflected in the draft. Fortunately the draft does not promote what appear, to this author at least, to be the extreme difficulties of hybrid systems, as our own 'Grand Coalition' has shown.

CONCLUSION

The draft is a great achievement with many merits. It aims for a caring society, and people of diverse backgrounds bound together in love of the country and concern for all. It would establish an open society and strengthen participatory democracy. It would empower and energise the people. It would result in considerable improvement in the social and economic conditions of Kenyans. But in my view, there is room, within the broad framework of the draft, for improvements in substance and drafting. The CoE should pay attention to these deficiencies, not numerous nor fundamental, but a legitimate cause of criticism.

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* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a special representative of the UN secretary general in Cambodia on human rights.
* Convened by Richard Bosire, an interview with Yash Ghai is available here.
* This article was originally published by The Star, Kenya.
* Please send comments to [email protected] or comment online at Pambazuka News.