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Constitution of Kenya Review Commission |
By Dr. Harry Ododa Senior Lecturer, Department Of Government And Public Administration Moi University
15-09-2001
Presented To: The Constitution Of Kenya Review Commission Workshop Held At Mombasa Beach Hotel
INTRODUCTION
Theorizing on government, governance, and the state- the basis of government instrumentality - goes back to the very beginning of theorizing on human activity in general. Systematized theorizing can be traced to the Greek philosophers, Plato and Aristotle. Such theorizing continues today and in all likelihood, will persist. This paper is divided into two parts. Part one defines and discusses the concepts state, nation and nation-state. These concepts set the foundation for and define the parameters of government instrumentality. Part Two explores some basic issues in constituting and structuring government. These issues are identified in Part Two; they distinguish political systems.
PART ONE
The concept state has two meanings. The first one is that it is a form of social organization with certain distinctive characteristics which differentiate it from the vast array of other forms of social organizations in both the primary and secondary voluntarist categories. Examples of such organizations are the family, an ethnic group, a church, a political party, a labor union, a professional or recreational organization etc.
The first distinctive characteristic of the state is territoriality. This has three dimensions. The first of these dimensions is that the boundaries of the state are impregnable and virtually sacrosanct. Aliens/outsiders wishing to cross these boundaries into its territory are required to obtain the state's express permission, typically in the form of a visa or some other travel document. Those entering the territory illegally are subject to arrest, deportation, repatriation, or other types of punitive action by the state. The second dimension of the state's territoriality concerns its airspace. Like the boundaries the states airspace is inviolable. All aircraft entering such air space must obtain prior permission. Intruders are liable to punitive measures which may be quite drastic and arbitrary; recent history is replete with examples of this. The third dimension of the state's territoriality concerns littoral states. The territorial waters of such states are also inviolable; the traditional limit of the territorial waters has been three nautical miles. Again examples abound of ships that have been sunk impounded or otherwise punished in violation of this element of territoriality.
The second distinctive characteristic of the state is that it has monopoly over the physical means of compelling compliance. Although other social organizations can use physical means such as caning in schools, or in families, the state imposes limitation on such use for all social organizations within it. For instance, the school teacher, the parent or the husband who brutalizes the student, the child or the wife respectively is answerable to the state. As for the state itself, there is no limit, as it were, to its claim on this score. Of all social organizations, only the state can lay claim to the legitimacy of taking the life or lives of some of its members in defense or furtherance of its interest; this is embodied in the death penalty which states exact for certain offenses.
The third distinctive characteristic of the state is a permanent population. There is no specified legal minimum, or for that matter, maximum, for this. The vague commonsensical guideline is that the number suffice to meet the needs of the state; very small numbers impose obvious problems.
The fourth distinctive characteristics is that methods used by the state to enforce its laws, rules or regulations typically have the backing of force as symbolized by the firearms the law enforcement officers bear. Many regulations such as income collections are enforced involuntarily, arrests can be made forcefully and compliance with court orders is typically based on compulsion.
The fifth distinctive characteristic is that the authority of the state normally applies to all individuals, groups and organizations within its territory. This is so despite diplomatic immunity which essentially is a quid pro quo based on reciprocity. Failing reciprocity a state can take certain steps to enforce its authority ever even diplomats; examples of such steps are declaring the errant diplomat persona non grata and, in the extreme case, the severance of diplomatic relations.
Sovereignty is the sixth distinctive characteristic of the state. This means that the state has only peers and no superiors. The state theoretically, is not subject to the authority of any other social organization unless the state itself voluntarily submits to such authority. Recognition by peers is the seventh characteristic. Sheer recognition, however, is not a constitutive element as such; that is, it does not prevent a state from coming into existence. Recognition legitimizes the state and facilitates its role vis a vis other states as well as non-state actors in the international system. A pariah state must have sufficiently strong elements of capability to wither international ostracism; this was the case with the Peoples Republic of China, for instance. It must be noted, however, that sheer de facto existence and endurance almost inevitably leads to de jure status and recognition.
The last distinctive characteristic of the state is that the state has become the standard form of social organization in terms of inclusivity. This is symbolized by the fact that the state is the entity of demarcation on world maps and not such entities as ethnic groups, political parties, or churches.
Before concluding the discussion on the state it is appropriate to touch on its origin. Since it represents a revolution in the evolution of social organization in that it sets up a government inclusive of people not based on consanguinity. Various theories explain the origin of the state.
The most important of these are: the social contract; divine theory; natural theory, and;
the conquest theory.
The social contract is perhaps the most dramatic of such theories. The contractarians, Thomas Hobbes, John Locke and Jean J. Rousseau contend that man in his natural state is not a social being. Human existence prior to social organization was a state of constant warfare and fear of violent death, to adopt the Hobbesian version. As a result, life was "solitary, nasty, brutish, and short." Man therefore entered into a "contract" with his fellow beings to create a "Leviathan," the state, that would protect them all. Though historicity is not implied in it, the social contract theory certainly makes the origin of the state plausible.
The natural origin theory contends that social organizations radiate outwards from the nuclear family in concentric circles based on human needs; the state is the outermost circle.
The state assumes a variety of forms. Among these are theocracies, democracies, monarchies, republics, oligarchies, dictatorship, and even "cleptocracies" - the most recent coinage in the lexicon.
Like the concept state, the concept nation also has two meanings: a group of people with common characteristics and no common independent government/state or government/state of their own, and; such a people with a common independent government/state or an independent government/state of their own.
The concept-nation-state highlights the idea of the state, the most powerful social organizational tool invented by human beings, as an instrument/mechanism for the advancement of the interests of a people and not of individuals. It is the culminating of a protracted tortuous process beginning with the rejection of the French King's dictum: "I am the state and the state is me."
Part Two of this paper discusses the following issues which distinguish political systems: fusion of powers versus separation of powers; unicameral versus bicameral legislatures; checks and balances; unitary versus federal systems; head of state versus head of government; parliamentary supremacy versus judicial review, and; limitation on state powers.
Fusion versus separation of powers are ideal types/models with no exact fit empirical referents in time or space; only approximations exist. The models are distinguished on the basis of personnel, functions and institutional arrangement. In fusion of powers functions are shared among three branches of government, the executive, legislative and judiciary; the memberships in these branches overlap. In separation of powers memberships in the three branches are mutually exclusive and the functions are theoretically distinct. The best approximations of the two models are the United Kingdom and the United States respectively. In the former the Chief executive and the cabinet must, by law, be members of the legislature. The law lords in the House of Lords constitute the highest court of appeals. By contrast in the United States, the Chief executive and the Cabinet must, by law, not be members of the legislature; the chief executive is elected by the national constituency. Both have their strengths and weakness. Perhaps the worst scenario in separation of powers is the possibility of government impasse arising form different parties controlling the executive and legislative branches.
In unitary political systems power is concentrated in the national government. The national government creates administrative units and delegates powers to them; the number, boundaries and extent of the powers of these units can be modified or abolished at the whim of the national government. In federal systems powers are shared between the national and sub-national authorities in such a way that each has primary or exclusive responsibility in particular public policy areas. The autonomy or virtual independence of each level in such areas is entrenched. The boundaries of the constituent units also cannot be altered without their consent.
Bicameral legislatives are typically, but not exclusively, a feature of federal systems while unicameral ones are more common in unitary systems. In federal systems the upper house of the legislature typically serves the purpose of equalizing the otherwise diverse sub-national units in terms of population, size and economic resources. Equalization is attained through equal representation.
Parliamentary supremacy and judicial review are modes of legislation. In the former legislative authority is vested in the legislature/parliament exclusively. For a variety of reasons, the legislative may, however, delegate such powers while retaining control and monitoring capability. In judicial review a body of experts, usually judges, are empowered to review legislation passed by the legislative and to strike them down as null and void if found to be in violation of the constitution of the country. Neither one of these is inherently superior to the other; each has its own strengths and weaknesses. An immediate strength of parliamentary supremacy is that it conforms to the democratic tenet of legislation by the elected representatives of the people. An immediate strength of the judicial review model is that it can be used to cater for the interests of particular disadvantaged groups who may not be able to elect enough representatives at their own.
Separating the head of state from the head of government is akin to triumvirancy. Where separation exists the former is expected to be apolitical, above the factional fray. The latter is immersed in politics and runs the day to day activities of government, but is responsible to the former. Unless carefully designed such separation may lead to mutual dismissal from office such as that of President Kasavubu and Prime Minister Patrice Lumumba in the former Congo Leopoldville.
Limitation on government powers is justified on the grounds of various theories based on ideas of: individual rights, the general will, and democratic ideals. The presumption as it were, is that an unfettered leviathan may run amock to the detriment of the individuals who created it. Such ideas can be traced at least to the social contracterians but especially to the liberal democratic theorists, or utilitarian, Jeremy Bentham and John Stuart Mills. These people argue that government finds justification for its continued existence only in serving the interest of the governed, the people.
A variety of techniques, devices, principles and features of political systems :are used to effect limitations on government power. These include:
impeachment, veto, veto override, legislative committee oversight, ultra vires, elections, limitation on terms, recall, federalism, separation of powers, judicial review, democratization and the nurturing or inculcation of an allegiant participant political culture that helps to develop individual efficacy in the citizenry. Finally the emerging two pronged and seemingly paradoxical trend of globalization and villagization may prove to be a portent instrument of limitation on government powers especially in the developing countries.
Theorizing on government and governance is a cumulative task. The theory of government for Kenya must necessarily be eclectic to benefit from the extant models and experiences of other countries in time and space. The fluidity of our setting as a new nation offers a special challenge for our nation-building efforts. In the final analysis the theory must be unique and tailored to suit the particular context of our nation. Such a theory must reflect the following: our past – pre-colonial, colonial and post colonial; the rich diversity of our society; the values we cherish, and; the aspirations that though elusive and not immediately attainable, will serve as beacons as we strive for higher heights in our nation building efforts. The governmental and political institutions and process we device and forge must seek to limit the effects of centrifugal forces and to maximize those of the centripetal forces. They must remain flexible to meet future challenges for ourselves and our future generations.