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Constitution of Kenya Review Commission |
By By J.B.OJWANG Professor of Law & Dean Faculty of Law University of Nairobi
14-09-2001
ABSTRACT
Constitutional reform in Kenya has, today, assumed a special level of urgency for two reasons. Firstly, Kenya has experienced numerous social, political and economic changes over the last nearly four decades of independent statehood, and the Constitution, in the same way as all other operative laws, must be subjected to a normal process of reform, so as to remain adjusted to the trends of the social dynamics. Secondly and perhaps more compelling, the Constitution as the normative framework of politics, governance and public power can only give satisfaction to the Kenyan population if it incorporates major new developments in national political preferences, in the people's evolving perceptions of good governance, and in the crystallisation of more progressive public management principles emanating from and popularised by international legal fora such as those which bring all states together at the United Nations, or under the umbrellas of important new treaties and regional pacts.
The framework for Kenya's constitutional reform initiative is given by the Constitution of Kenya Review Act (Cap. 3A). This Act established various fora to serve as agencies in the constitutional review process. The main responsibility in this process is reposed in the Constitution of Kenya Review Commission which is to ensure "the comprehensive review of the Constitution by the people of Kenya". The Act specifies the functions, powers and privileges of the Commission and Commissioners, and defines their work modalities leading to the formulation of a Report accompanied with a draft for a new Constitution. The Commission is required to conduct a systematic recording of the people's inputs and to process these and formulate a draft Constitution to be further debated and adopted.
The Commission's mandate requires it to seek the people's contributions on certain stated matters of constitutional character, such as: constitutionalism and the checks - and - balances system in government; the unitary and the decentralised type of constitutional structure; human rights and gender equality; the electoral process; property rights; the law of citizenship; cultural practices; modalities of accession to public offices; the management of the foreign affairs power.
The Act has set the stage for the making of a Constitution that responds to the voice of the people, one that reflects national needs as perceived by the people. This will be different from the present Constitution which, from the beginning, was the handiwork of elite groups, and the many amendments (more than30) to which originated almost exclusively from government, parliamentary or civil society quarters.
The terms of the grant of political independence by the British colonial power had transplanted to Kenya a pluralistic scheme of government embodied in a Constitution that rested on multipartyism, and that established a checks - and - balance system in the working of the Executive, the Legislature and the Judiciary. But the period running from 1965 to 1970 saw a replacement of this Western - type constitutionalism with a monolithic governmental structure that was epitomised and consolidated by the single Executive leadership reinforced by a one-party system. Recent clamours for constitutional change must be attributed in particular to objections to such a linearity of the holding of public power, which has been perceived as closing doors to transparency and accountability, and giving cover for abuse and unaccountability.
Against this background, the Constitution of Kenya Review Commission needs to set off by identifying the most critical political and constitutional issues, so that these may serve as the initial reference - point in the consultations with the Kenyan people.
The Commission needs to consider in the first place, whether a new Kenyan Constitution should retain the essential character of the current one, as a rather dry, essentially juridical instrument, or whether, in the light of the tenor of the clamour for change, the new Constitution should begin with statements of goals, philosophies and directive principles. Most of the new-
generation African Constitutions (such as those of Burkina Faso, Ethiopia, Namibia, South Africa and Uganda) have chosen to enact inspiring principles and philosophies, to set the stage for the realisation of the operational prescriptions of the constitutional document.
Certain matters readily suggest themselves as areas of consultation between the Commission and the people. The following in particular fall in that category —
(i) the choice between a unitary and a federal or semi-federal Constitution;
(ii) the character of the Executive organ — whether Kenya should
have an executive President elected by the people and responsible to the voter (as is the case at present); or a constitutional Head of State and Commander - in - Chief of the Armed Forces with an executive Prime Minister; or a Parliament-elected President who is also Head of State and Head of Government or just Head of State, but with a Prime Minister; or a President who is Head of State enjoying a constitutionally defined tenure but with a Prime Minister subject to the complete control of Parliament; or a President with one or more Vice- Presidents, as well as a Prime Minister with one or more deputies; or a President who is both Head of State and Head of Government but with a nominal Prime Minister.
(iii) The Commission needs to arrive at a new position in the draft Constitution, on whether the responsibility for determining the numbers and descriptions of ministerial portfolios, establishing or abolishing them should belong to the Executive leadership or to Parliament. It also should hear the views of the people on the authority to hire and fire within the public service; is this a prerogative, or is it a matter for regulation by an autonomous constitutional agency?
(iv) With regard to the Judiciary, the Commission should deal with the issue of a Supreme Court as part of the judicial hierarchy; and with the authority of the highest court to determine constitutional matters.
Other issues that should be the subject of consultations in the review process are—
(i) whether or not the foreign affairs power should be regulated in detail in the Constitution, and made subject to check-and-balance procedures;
(ii) whether or not a detailed law of natural and human - originated emergencies should be provided for in the Constitution;
(iii) whether, if the principle of multi-partyism is fully accepted, it would still be necessary to have constitutional provisions protecting Collective Cabinet Responsibility;
(iv) "the role of coalitions in the governmental process, if multi-partyism is fully accepted
(v) the position of the no-confidence or censure vote in the parliamentary system of government;
(vi) the parliamentary tradition that permits the prorogation and dissolution of Parliament
(vii) the case for a second parliamentary chamber;
(viii) the law of citizenship, especially in relation to the case for gender equality, and in relation to classification of citizens;
(ix) the case for strengthening the fundamental rights provisions of the Constitution;
(x) the procedure of enforcement of the fundamental rights provisions of the Constitution;
(xi) the use of the nomination procedure for a section of the membership of Parliament;
(xii) the position of the Attorney-General in the political functions of Parliament and the Executive, and in the professional role of the State Law Office;
(xiii) the functioning of the electoral process, in relation to the goal of free and fair elections;
(xiv) parliamentary control in matters of public finance;
(xv) the protection of natural resources and the environment;
(xvi) transitional provisions in relation to public office-holding and the succession process;
(xvii) the possible creation of new check - and - balance institutions, in particular the Ombudsman.