Post by Onyango Oloo on Oct 23, 2005 2:48:58 GMT 3
A Constitution is Too Important to Be Decided on Whims
By Prof Yash Pal Ghai
Kenyans have long struggled for constitutional reform. They struggled because they suffered under an oppressive system of government.
Their human rights were suppressed. The power of the State was concentrated in one person, the President.
First regions and then local governments were stripped of all their powers.
At the centre, the President dominated all institutions of the State.
Cronyism was substituted for politics, merit counted for little, the government frequently abused the law and the exercise of power was unpredictable and arbitrary.
The Judiciary had failed to protect the Constitution and the rights of the people.
The civil service and other executive organs lost independence.
There was corruption, plundering both of the State and a captive private sector, on a massive scale.
When the CKRC went around the country to receive the views on reform, the people everywhere complained of being marginalised.
Many of them suffered from heart-rending poverty; even government statistics showed that nearly 60 per cent of Kenyans lived below the poverty line.
They felt abandoned by the government and lost all confidence in its will or the capacity to listen to the people, much less to relieve their poverty and sense of helplessness. It seemed as if the whole nation was alienated from the State.
Experts as well as ordinary people attributed their misery to the centralisation of power in the President and the lack of his accountability. The sense of their own helplessness was more than reflected in the usurpations by the central government of powers that they considered they should exercise through their local councils and communities.
The struggle for constitutional reform was driven by the need for the recognition of their dignity and rights, by the vision of a democratic and caring society, empowerment of local communities, and public participation in the affairs of the State.
Kenyans, as is well known, made many sacrifices (of life, limb, freedom, property) in their struggle for reform. In this struggle a critical role was played by the ordinary people, civil society organisations and religious leaders.
Some politicians later joined the struggle but the leadership remained with civil society groups until the battle to initiate a review process was won. The terms of the review were influenced by the form of the struggle. The review was to be inclusive of the diversities of the country. It was to be democratic and transparent. Above all, it was to be ‘people-driven’, and the Constitution was to faithfully reflect the recommendations of Kenyans to be made to an independent commission.
All the organs of review (the CKRC, the National Constitutional Conference and the National Assembly) were to be accountable to the people.
Agreement was also reached on a wide-ranging reform agenda which more or less dictated a radically different document from the existing Constitution.
After almost exactly five years after the formal review process began (and countless hours of the engagement of the energy, intellect and emotions of the people, and the expenditure of billions of shillings), the people will have the opportunity to decide whether to adopt a Draft Constitution prepared by a faction of the government.
This is the first time in Kenya’s history that the people will participate in a referendum.
This is to be welcomed.
A referendum is an important device for the expression of the consent of the people.
But we ought to remind ourselves that referendums can be manipulated and have been used by dictators to bolster their regimes.
The referendum offers a choice between ‘Yes’ and ‘No’; it does not give the people the right to make decisions. Nor is a referendum necessarily a constructive device in multi-ethnic societies, as it tends towards ethnic polarisation.
So while Kenyans should welcome this opportunity, they must also use it sensibly and constructively.
They must try to fully understand the provisions of the Draft Constitution and ponder over how they will actually work in practice.
They will need to consider questions like: What does the Draft Constitution offer us? Does it reflect the views that Kenyans expressed to the CKRC?
How does the Draft differ from the Bomas Draft which was made in accordance with the procedure in original agreement of all Kenyans?
Will we be better off under it than under an alternative Constitution? What will be the political and legal consequences of defeat or success?
What are the prospects of getting a better constitution? How will we move from the present Constitution to a new constitution?
I intend, through a series of articles, to help Kenyans to understand these issues so that they can make an informed decision for their vote on 21 November. The political campaigns by the Banana and Orange teams have failed so far to focus on the provisions of the Draft Constitution (and have perhaps confused the people).
The campaign has been dominated by politicians whose personal interests may be in conflict with what is good for the country.
So let me explain the origin of the Draft Constitution that will be voted on next month.
The CKRC examined the current Constitution and analysed the many submissions made by the people, individually and collectively.
Then it drafted a constitution (the CKRC draft) to reflect people’s recommendations and the reform agenda inscribed in the Review Act.
After prolonged public debate, the National Constitutional Conference (NCC) met to debate and adopt it. The NCC took its own time to consider the draft, endorsed it on the whole, but made some modifications and additions.
Towards the end of its work, a faction of the government took exception to some provisions of the draft or decisions of the NCC.
Having been defeated on one or two of its motions, it members walked out.
The NCC continued its proceedings and adopted a draft in accordance with the law, by two-thirds majority vote. This was the Bomas draft.
The opponents of the draft, with the assistance of the courts, prevented the submission of the Bomas draft to the National Assembly for formal enactment as provided in the Review Act. Subsequently the National Assembly amended the Review Act to give itself additional powers to change the Bomas draft before submitting it to a referendum.
In meetings of parliamentarians at Naivasha and Kilifi amendments were proposed (although there was subsequent disagreement as to what exactly had been agreed).
The Attorney General was deputed to revise the Bomas draft to incorporate the Naivasha agreement which without further scrutiny was to be submitted to the referendum.
This is called the Wako Draft, but I shall call it the Referendum Draft. Even since the end of Bomas, only a handful of politicians have been involved in the changes to the Bomas draft.
In subsequent articles I will compare the provisions of the current Constitution and the CKRC, Bomas and Referendum drafts, to explain the key provisions of the draft which the people have to vote on.
My intention is not to take sides in the controversies between political groups or other protagonists and opponents of the Referendum Draft.
I realise that one cannot be fully objective in matters like this (and perhaps that is harder for me than many others, given my involvement in the process up to Bomas) but I intend to be as objective as possible.
In concluding this article, I want to make a general point. Although I will deal in each article with separate topics, it is important to read and understand the constitution as a whole. Almost every article of a constitution depends in some sense on all other provisions.
The system of the executive depends on its relationship with, and the powers of, the legislature. The legitimacy of the legislature depends on the electoral system.
The effectiveness of the bill of rights depends on the transparency of the government and the methods of accountability.
It does not therefore make much sense to say, as many people have said, that the Referendum Draft is 80 per cent the same as the Bomas draft.
It is the 20 per cent that is omitted or modified that may be crucial.
How seriously rights are taken, how resources are distributed, how much public participation there is, and other fundamental issues may all depend on, for example, whether there is a parliamentary or presidential system.
Imagine an architect who, asked to reproduce a much-admired building, says that her plans are an exact copy (down to the window frames), save for a few details.
Imagine now that the few details which are left out concern the firmness of the foundations to hold up the building.
So can it be with a constitutional system.
The author is a Sir YK Pao Professor of Public Law at the University of Hong Kong.
By Prof Yash Pal Ghai
Kenyans have long struggled for constitutional reform. They struggled because they suffered under an oppressive system of government.
Their human rights were suppressed. The power of the State was concentrated in one person, the President.
First regions and then local governments were stripped of all their powers.
At the centre, the President dominated all institutions of the State.
Cronyism was substituted for politics, merit counted for little, the government frequently abused the law and the exercise of power was unpredictable and arbitrary.
The Judiciary had failed to protect the Constitution and the rights of the people.
The civil service and other executive organs lost independence.
There was corruption, plundering both of the State and a captive private sector, on a massive scale.
When the CKRC went around the country to receive the views on reform, the people everywhere complained of being marginalised.
Many of them suffered from heart-rending poverty; even government statistics showed that nearly 60 per cent of Kenyans lived below the poverty line.
They felt abandoned by the government and lost all confidence in its will or the capacity to listen to the people, much less to relieve their poverty and sense of helplessness. It seemed as if the whole nation was alienated from the State.
Experts as well as ordinary people attributed their misery to the centralisation of power in the President and the lack of his accountability. The sense of their own helplessness was more than reflected in the usurpations by the central government of powers that they considered they should exercise through their local councils and communities.
The struggle for constitutional reform was driven by the need for the recognition of their dignity and rights, by the vision of a democratic and caring society, empowerment of local communities, and public participation in the affairs of the State.
Kenyans, as is well known, made many sacrifices (of life, limb, freedom, property) in their struggle for reform. In this struggle a critical role was played by the ordinary people, civil society organisations and religious leaders.
Some politicians later joined the struggle but the leadership remained with civil society groups until the battle to initiate a review process was won. The terms of the review were influenced by the form of the struggle. The review was to be inclusive of the diversities of the country. It was to be democratic and transparent. Above all, it was to be ‘people-driven’, and the Constitution was to faithfully reflect the recommendations of Kenyans to be made to an independent commission.
All the organs of review (the CKRC, the National Constitutional Conference and the National Assembly) were to be accountable to the people.
Agreement was also reached on a wide-ranging reform agenda which more or less dictated a radically different document from the existing Constitution.
After almost exactly five years after the formal review process began (and countless hours of the engagement of the energy, intellect and emotions of the people, and the expenditure of billions of shillings), the people will have the opportunity to decide whether to adopt a Draft Constitution prepared by a faction of the government.
This is the first time in Kenya’s history that the people will participate in a referendum.
This is to be welcomed.
A referendum is an important device for the expression of the consent of the people.
But we ought to remind ourselves that referendums can be manipulated and have been used by dictators to bolster their regimes.
The referendum offers a choice between ‘Yes’ and ‘No’; it does not give the people the right to make decisions. Nor is a referendum necessarily a constructive device in multi-ethnic societies, as it tends towards ethnic polarisation.
So while Kenyans should welcome this opportunity, they must also use it sensibly and constructively.
They must try to fully understand the provisions of the Draft Constitution and ponder over how they will actually work in practice.
They will need to consider questions like: What does the Draft Constitution offer us? Does it reflect the views that Kenyans expressed to the CKRC?
How does the Draft differ from the Bomas Draft which was made in accordance with the procedure in original agreement of all Kenyans?
Will we be better off under it than under an alternative Constitution? What will be the political and legal consequences of defeat or success?
What are the prospects of getting a better constitution? How will we move from the present Constitution to a new constitution?
I intend, through a series of articles, to help Kenyans to understand these issues so that they can make an informed decision for their vote on 21 November. The political campaigns by the Banana and Orange teams have failed so far to focus on the provisions of the Draft Constitution (and have perhaps confused the people).
The campaign has been dominated by politicians whose personal interests may be in conflict with what is good for the country.
So let me explain the origin of the Draft Constitution that will be voted on next month.
The CKRC examined the current Constitution and analysed the many submissions made by the people, individually and collectively.
Then it drafted a constitution (the CKRC draft) to reflect people’s recommendations and the reform agenda inscribed in the Review Act.
After prolonged public debate, the National Constitutional Conference (NCC) met to debate and adopt it. The NCC took its own time to consider the draft, endorsed it on the whole, but made some modifications and additions.
Towards the end of its work, a faction of the government took exception to some provisions of the draft or decisions of the NCC.
Having been defeated on one or two of its motions, it members walked out.
The NCC continued its proceedings and adopted a draft in accordance with the law, by two-thirds majority vote. This was the Bomas draft.
The opponents of the draft, with the assistance of the courts, prevented the submission of the Bomas draft to the National Assembly for formal enactment as provided in the Review Act. Subsequently the National Assembly amended the Review Act to give itself additional powers to change the Bomas draft before submitting it to a referendum.
In meetings of parliamentarians at Naivasha and Kilifi amendments were proposed (although there was subsequent disagreement as to what exactly had been agreed).
The Attorney General was deputed to revise the Bomas draft to incorporate the Naivasha agreement which without further scrutiny was to be submitted to the referendum.
This is called the Wako Draft, but I shall call it the Referendum Draft. Even since the end of Bomas, only a handful of politicians have been involved in the changes to the Bomas draft.
In subsequent articles I will compare the provisions of the current Constitution and the CKRC, Bomas and Referendum drafts, to explain the key provisions of the draft which the people have to vote on.
My intention is not to take sides in the controversies between political groups or other protagonists and opponents of the Referendum Draft.
I realise that one cannot be fully objective in matters like this (and perhaps that is harder for me than many others, given my involvement in the process up to Bomas) but I intend to be as objective as possible.
In concluding this article, I want to make a general point. Although I will deal in each article with separate topics, it is important to read and understand the constitution as a whole. Almost every article of a constitution depends in some sense on all other provisions.
The system of the executive depends on its relationship with, and the powers of, the legislature. The legitimacy of the legislature depends on the electoral system.
The effectiveness of the bill of rights depends on the transparency of the government and the methods of accountability.
It does not therefore make much sense to say, as many people have said, that the Referendum Draft is 80 per cent the same as the Bomas draft.
It is the 20 per cent that is omitted or modified that may be crucial.
How seriously rights are taken, how resources are distributed, how much public participation there is, and other fundamental issues may all depend on, for example, whether there is a parliamentary or presidential system.
Imagine an architect who, asked to reproduce a much-admired building, says that her plans are an exact copy (down to the window frames), save for a few details.
Imagine now that the few details which are left out concern the firmness of the foundations to hold up the building.
So can it be with a constitutional system.
The author is a Sir YK Pao Professor of Public Law at the University of Hong Kong.
