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Constitution of Kenya Review Commission |
By Hon. Dr. Bonaya Adhi Godana, EGH, MP
13-11-2001
It gives me great pleasure to address this Constitution of Kenya Review Commission on the subject of "Constitutionalisation of foreign policy and diplomacy".
I take it that the Commission wants to hear views on the desirability or otherwise of the constitution regulating the conduct of foreign affairs and diplomacy and if it is so desirable, the extent of such regulation. Before putting forward arguments for or against such constitutional regulation of the conduct of foreign affairs it is pertinent to make a re-statement of the current constitutional position in Kenya on this important subject.
The foreign policy of a state is the combination of principles and norms, which guide or determine relations between that state and other states or bodies in the international system. The path each state decides to follow in world affairs depends on its capabilities, actual or potential, and its assessment of the external environment.
In our constitutional context the conduct of foreign affairs is the prerogative of the chief executive, i.e. the President of the Republic. The independent Government of Kenya inherited all the prerogative powers that the Queen could exercise in relation to Kenya in 1964, via S.16 of the Constitution of Kenya. Amendment Act, No.28, of that year. To date, foreign affairs are conducted under prerogative powers. Indeed it is also right to say that the power to conduct foreign affairs is part of the executive powers that are expressly vested in the President by Article 23 of our Constitution.
On both premises the Government is free to negotiate treaty and other relations with foreign nations, subject only to the rule of incorporation into domestic law, where such incorporation is necessary. Save in such cases of incorporation into domestic law, there are wide and important areas in foreign affairs where the Government is free of legal, as opposed to political controls. These include the declaration of war, the dispatch of armed forces, the annexation of territory, the conclusion of treaties, the accrediting and reception of diplomats and the recognition of new states and revolutionary governments. All such acts sometimes called "acts of state" fall within the scope of the prerogative to conduct foreign affairs and are assertions of state sovereignty in international relations.
To recapitulate then, foreign policy is the prerogative of the Chief Executive, His Excellency the President. He is the chief initiator, articulator, and director of our foreign policy at any forum or platform of his choice.
The Minister for Foreign Affairs, like any other Minister of State, may defend and articulate such a policy and represent the President at various fora where foreign policy issues are discussed and debated and a stand taken on issues, but the ultimate prerogative and privilege of initiating, directing and shaping foreign policy remains with His Excellency the President. Nor is this unique to Kenya. It is true of all countries in the world today, for whether the office is that of Foreign Secretary, Foreign Minister, External Affairs Minister or Secretary of State, the Minister for Foreign Affairs everywhere is a Minister of State under the Chief Executive.
The method or style of formulating and articulating foreign policy may vary from country to country. In one case there may be a highly institutionalized and some what predictable system, while in another the system may be highly personalized and less predictable.
On the whole, however, the Chief Executive of the State everywhere guides foreign policy.
The issue of the constitutionalisation of foreign policy and diplomacy, which I have interpreted to mean the need for or otherwise for express constitutional regulation of the field leads to the following questions.
* What should be the role of the Executive over the conduct of foreign affairs? For example, should the executive have an exclusive authority over the conduct of foreign affairs or should it have some limited role? If so what should be the extent of such limitation?
* What role should Parliament, however conceived, have in the formulation of foreign policy? Should for instance major decisions such as the declaration of war or conclusion of peace, the conclusion of treaties and appointment of Ambassadors be subjected to Parliamentary ratification, vetting or some form of censor, as the case may be?
* What role should the citizen be assigned to influence the conduct of foreign affairs?
The answers to these questions will hinge on the assessment of the competence of each of these institutions in the matter of foreign affairs, the Executive, Parliament and the Citizen.
In a nutshell the contest is between greater democratization of foreign policy on the one hand, which would mean a constitutional role for the citizen and his representative in Parliament to participate in the formulation of foreign policy and diplomacy, and an exclusive or near exclusive assignment of responsibility for the conduct of foreign affairs and diplomacy to the Executive organ of the State, on the other hand. Whether the country adopts one or other of these options or a sort of a hybrid. What is needed is a constitutional structure where competence, confidence and power are properly assigned in the constitution to facilitate effective foreign policy.
I want to state at the outset my bias for the position which some of you will no doubt call conservative in favour of the primacy, if not monopoly, of the Executive over the conduct of Foreign Affairs and Diplomacy. In this I find solace inter-alia in the fact that the early principal theoretical writers on government such as BIackstone/ Lock and Montesquieu are on record for
unanimously contending that power to conduct Foreign Affairs must always rest with the Executive.
In our own modern times it is interesting to note that even in such renowned constitutional democracies such as the United States of America where Congress has been given an express role in the Constitution to influence foreign policy, the courts have liberally invoked the doctrine of "political questions" which lie largely outside judicial competence or authority, in-order to avoid deciding on matters relating to the conduct of foreign relations. Thus, for instance, in 1829, in the case of Foster-v-
Neilson the Supreme court refused to rule on the location of the boundary between Spain and the U.S. in 1804 because in its own words this was more "political than a legal question" and one on which the country must accept the decision of "political departments".
Constitution making is after all about better democratic governance. Ideally in a democracy citizens must decide on the ends of public policy and the means of those ends. A country is democratic or non-democratic to the extent that the citizen can or cannot influence the conduct of his or her country's public affairs. In the realm of foreign policy as one part of public policy the question arises as to whether the citizen is competent enough to decide on issues of foreign affairs and diplomacy, so as to be given a clear role to that effect. The simple answer is no. The average citizen is least competent in this field as there are many difficulties that confront him or her in making rational decisions. I would like to outline here some of the major barriers to citizen competence in foreign affairs.
A central problem of democracy in a complex modern society turns upon the question as to how and indeed whether the citizen can bring to bear on broad questions of public policy sufficient rationality to achieve his basic purposes. By rationality here, we mean the capacity to choose the best means available, i.e. the best of the alternatives available, for achieving desired targeted ends. Ordinarily most of us tend to act rationally when we have to make choices about things within our own experience, than when we are concerned with things remote from us. Foreign affairs is definitely one field of public policy in which the problem of rational decision making by the citizen is great. This is because foreign policy questions involve matters that are not of immediate or direct interest to many of us. The more remote the issue is from my experience the less rational I am likely to be in making a decision.
Not only are foreign policy decisions remote from most of us; they are also often extra-ordinarily complex even to the expert. A matter which is complex to the expert/ must be overwhelmingly so to the non-expert.
The individual citizen's claim to a direct constitutional role in foreign policy making also comes up against impediments inherent in the political machinery for registering choices. By its very nature politics does not favour the citizen with clearly formulated alternatives from which he can make a rational choice. For instance, the absence of coherent parties, the lack of decisive influence by the party leadership over party voting in parliament, the perennial and sometimes deliberate ambiguity of the party platform and its general inadequacy are hallmarks of many a multiparty political scene. All these serve to confuse the citizen and inhibit him from making an effective choice.
Let me rest there the case against a pronounced constitutional role for the citizen in the conduct of foreign affairs.
I want now to turn more specifically to-the case against parliamentary competence in this field.
We said that an action is rational if it is designed to achieve the preference of those in whose interest the action is taken. Foreign policy decisions are taken or at least ought to be taken for the benefit of the country in its entirety, and not of one segment. The enhancement of the national interest must always be at the fore of decision making.
Greater parliamentary role in the conduct of foreign affairs can only mean or lead to greater inquiry, discussion and debate by parliament in the formulation of policy.. Yet such inquiry, discussion and debate would mean ventilation in public and augur badly for the effective pursuit of foreign policy in the national interest.
Firstly, such public ventilation on issues may militate against attaining agreement on objectives. Publicity given to the process of negotiation can hinder rational and responsible decision making. The glare of public debate promotes policies of extreme intransigence as every concession is likely to be seen as weakness in the mirror of public opinion. A leadership which might otherwise tactfully concede a bargaining point and then give way to achieve its real aims, may not do so for fear of losing face at home.
As both sides suffer the same fate international negotiations will be stalled! Secondly, international political strategy may sometimes depend on secrecy and surprise for success. It can sometimes be disastrous to draw up plans of action and then broadcast them through public or
Parliamentary debate.
Further, because international events move with speed, there is a premium on the ability to decide and to act quickly. Not infrequently, the state may have only one chance to decide - i.e. may not have a second chance if the first decision is wrong. The process of inquiry, discussion, and debate in Parliament is inherently ill-adapted to speed.
Similarly/unity of decision is a positive asset in international negotiation. But an essential quality of the legislative function of inquiry, discussion and debate, is the exposure of differences, i.e. of "disunity" or "disagreement". Such public display of disunity, is a serious limitation on effective foreign policy. The portrayal of unity in the country on foreign policy is the guarantee for full mobilization of the nation behind the policy concerned and perseverance and tenacity in the pursuit of that chosen policy. These in turn lead to fuller and persistent exploitation of a country's power potential. Conversely, a display of disunity behind a foreign policy option results in conflict and compromise, and therefore, a less than full exploitation of the country's power potential.
Moreover, the training, education, and personality of the Members of Parliament are not particularly conducive to the managerial, executive kind of outlook which is suitable for effective foreign policy. It is usually unlikely that organizational problems will preoccupy the attention and interest of the Member of Parliament. The politician, has been said to be less interested in creating order, rules, organizational "efficiency," and more interested in manipulating order, rules and organization to suit his purposes.
Even if the average Parliamentarian were to be well versed in foreign policy issues. Parliament faces severe constraints of time to effectively influence foreign policy. The Members of Parliament tend to devote their daily activities to the needs and plaints of his constituents. The M.P. is above all else an ambassador from his constituents; they see him as their liaison man for every problem that might conceivably be solved in the capital. He dare not take time from this function to attend to his more national duties, because it is his service to constituents and not his stand for the national interest, that will get him the votes. As government becomes more complex, citizens' demands on the M.P, multiply, and time becomes increasingly in short supply.
If parliamentarians are to effectively discharge responsibility in foreign affairs they will have to overcome this problem of time constraint.
Additionally, given the opportunity to have a constitutional role over foreign policy, M.Ps are bound to become preoccupied with attempts to control details as a method of controlling policy. This will be a most undesirable development.
Were the method of parliamentary control of foreign policy to be by Parliamentary legislation it would mean a rigid foreign policy which will be as undesirable as it is impractical.
Having considered both the citizen and the MP and marshaled arguments against their leading roles in the conduct of foreign affairs that leaves us to examine the position of the Executive. As I said at the beginning the general trend the world over is to give primacy, if not monopoly, to the executive in the conduct of foreign affairs.
The field of foreign affairs is one characterized by rapid shifts and increasingly crisis politics. The fact that international politics is increasingly characterized by acceleration of events makes speed and flexibility of decision making critically important. Speed and flexibility necessary for creating and implementing foreign policy, demands the executive be conferred with near exclusive responsibility in foreign affairs as the only guarantee for competent policies. The argument is succinctly captured in the words of an American Supreme court judge
"It is quite apparent that if, in the maintenance of our international relations, embarrassment... is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries.... He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials".
Effective foreign policy responses to international events often required accurate prediction of the behaviour of other actor and future happenings, a function the experts serving the executive, and not the citizen or politicians, are best suited for.
Additionally as between the competence of the Citizen, of Parliament and of the Executive, responsibility and nation-wide consensus is more likely to be achieved through the executive. The executive alone is best placed to secure a national mandate for its foreign policy. This is because the executive founded on an electoral mandate is the organ which can claim to be responsible to a national-wide electorate, which is capable of basing policy upon the widest possible agreement or consensus in the nation, and above all, which has at its disposal the organization and information necessary for rational action amidst the tremendous complexities of international politics.
It is my humble view that discretion over foreign policy by political leadership-often very great discretion is essential for survival in modern international politics.
Foreign policy is too complicated an affair to be conducted by plebiscite of public opinion. The basic question is not whether political leadership is to exercise discretion in foreign affairs, but how. In other words the challenge is to design a constitution which makes it reasonably probable that in exercising its discretion the political leadership will maximize so far as is possible the values of responsibility/ rationality, and agreement.
I suspect that some of you are burning with rage that I have surrendered everything to the executive in the pursuit of strong government. I am fully conscious that my argument above is an unhappy one for a democratic society, because it has favoured the executive with what some might characterize as "dangerously unlimited power" to commit the country without the people's consent.
But then I am also conscious of the fact that we live in an era of international politics least suited to the democratic method at all levels and all stages. If you cannot achieve the Utopia in which competence, responsibility and agreement (unity) can all be maximized at the same time, then you will have to sacrifice one to achieve another, - in this case sacrifice the democratic value of public/parliamentary control of policy.
Having said that I want to concede even this late that complete unfettered executive discretion in the discharge of foreign affairs is not tenable. Firstly to argue as I have argued is not to deny completely a role for parliament in influencing foreign policy. As it is even today under our current constitution. Parliament can exercise some influence through its powers of investigation and appropriation. The parliamentary power of appropriation gives the legislature influence over every executive policy that requires funding.
Beyond such existing inherent checks, the Commission could consider some express roles for Parliament to influence "but not to control" the conduct of foreign affairs and diplomacy by the Executive.
For instance, it could consider and provide: that the declaration of war and the conclusion of peace be made subject to some sort of ratification or approval by Parliament within reasonable time; that the appointment of ambassadors be subject to parliamentary scrutiny/ but not ratification, (which would mean the Executive need not be bound to withdraw the appointment or proposal where Parliament expresses strong reservation or criticism)-and it could require that all foreign treaties be notified to Parliament, i.e. in addition to those which have to be enacted into domestic law.
In conclusion I wish, to submit that the commission should design a constitutional dispensation in this regard that ensures a strong executive, which for the duration of its mandate is not unduly fettered by irresponsible controls and checks; an executive that is strong enough to implement confidently the program on which it was elected and the foreign policy it deems fit in the best national interest. Citizens can always have the ultimate check on irresponsible and unpopular foreign affairs at election time.