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Constitution of Kenya Review Commission |
By Prof. Henry Mwanzi.
11-09-2001
This commission, assisted by Kenyans in general, and informed Kenyans in particular is engaged in a search for national identity shared value system that forms a defining characteristics of what we call Kenya, and who we know as a Kenyan.
Cicero once said, there is
"nothing in which human excellence can more nearly approximate the divine than in the foundation of new states or in the preservations of states already founded".
Thus for me, the commission has a divine duty if you agree with Cicero. And in our case, not so much to found, because it is already founded, but to reinvent our Kenyan Nation. Certainly to help preserve it. Whether or not the foundation of states is a divine task, their preservation and maintenance have been throughout history the principal concern of those who lead them.
I believe that is the reason why this commission was appointed. There were signs that our nation was in danger of disintegration. The need for preservation is acute in those states that are characterized by sharp cleavages based on ethnic, racial, economic and other factors that divide the population.
So the first task of a constitutional review process is to ensure that what comes out ensures social stability as a means of preserving the state.
Social progress nourishes nationalism, until nationalism appears a an indispensable condition for social progress- the two constitute national identity, and reinforce each other. The means to achieve this integration is what is the problem in many contemporary systems of government. Integration in the western world pre-supposes the existence of a strong unified elite which has the ability to mobilize economic, social, political and military sanctions and which has the freedom and the willingness to apply these sections to the rest of society to ensure submission to it's will.
Systems of government in developing countries lack this type of unified elite. They also, as a consequence, lack the means to enforce their will. This is so because developing countries lack a dominant culture. What they have are several or many cultures which have co-existed throughout the ages and which compete with each other, for recognition. It is this competition among cultures that breeds ethnicity and ethnic rivalry. It may be a worthwhile idea, since we are engaged in a comprehensive review, for the commission to identify from our historical experience, a dominant culture or a set of values that may form the basis for social integration. South Africa attempted to deal with this problem by declaring virtually all South African languages, national languages and by having this embedded in their constitution.
Constitution making has two elements : it is normative as well as structural.
The normative element has to do with the value system that should be attached to and be contained in the constitution. It constitutes the sociological element of the constitution. It gives it life. The structural element deals with politics and is concerned with power arrangements and with distribution of offices. However the values, symbols which affirm a national political community and which sustain legitimate public authority need to be established for a constitution to have a base and meaning so that it can endure. I believe this is what was meant when it was stated that this process should be people driven, that is it should start from the bottom rather than from up. The commission will need to establish what that bottom is.
In what are called third world countries, constitutional arrangement has tended to concentrate on the structural context. The normative element has received little attention if it has not been ignored altogether. Structural arrangement as a means of integrating society politically requires a number of things.
It requires a formal arrangement of governmental structures (2) it requires formal linkages among positions of public authority. These linkages involve a set or sets of reciprocal rights and obligations which are legally defined. (3) If requires existence of informal linkages between rulers and the ruled. This entails interpretations of rights and obligations, judgments and performances as well as channels of communication, among other things. (4) it requires formal and informal linkages among citizens. This requires means to organise society to pursue common goals with minimal conflicts.
Now, what has all this to do with systems of contemporary systems of government? The vast majority of systems of government in the world to-day seem to be inherently unstable. This instability seems to be due to defects that emanate from their constitution making process. If we are to construct a stable system of government, We need to be aware of these defects, and try to avoid them.
These defects stem from failure to give equal weight to normative and structural aspects of society, which in turn affects the process of constitution making.
There are various systems of government in the world today, which are well known. Among them are (1) Unitary system with centralized power
(2) Federal system of government, or decentralized system of government. Again there are various
forms of this.
(3) Dictatorial on autocratic system of government. There is hardly any of this in the modem world today. For that reason, it does not require any consideration except safeguard against it's occurrence
(4) There is a presidential system of government. Again there are various forms of it. Lastly there is parliamentary system of government with various forms, The most common systems of a government are presidential, unitary, federal and parliamentary.
In a parliamentary system of government, the legislative majority is sovereign.
By extension the electorate which is represented by the legislature is sovereign. A committee of that legislative majority, which is called a cabinet heads the legislature and directs the executive. In a true parliamentary, system power is clearly defined and fixed. leadership is accountable to the legislature and must maintain the confidence of the parliamentary majority that formed it.
To function properly a parliamentary system requires strong party discipline for decisions to be arrived at quickly. It is an efficient system of government. lt is also effective. Great Britain is a model of this type of government. In this type of government there is unlimited expression and practice of democracy. The people are truly soveign. The leadership enjoys unlimited tenure of office so long it enjoys the confidence of the Electorate. That is the system Kenya inherited from Britain at the time of independence.
The Presidential system of government is exemplified by American governmental system.
A British Prime Minister was so exercised by the American constitution that he described it as "the most wonderful work ever struck off at a given time by the brain and purpose of man". The durability of that document and the development that have taken place in that country since; testify to the wisdom and inspiration of its framers. These framers were afraid of two things. They were afraid of tyranny. They were also afraid of democracy. If tyranny has excesses, democracy too has it's excesses. The framers of American institution sought to guard against both accesses. They insisted on strict separation of powers of the three branches of government; namely the legislature, the executive and the judiciary. Theirs was a partial success. The executive appoints Supreme Court judges. The Vice-President chairs sessions of the senate.Nevertheless the executive, on the whole is separate from congress.
The president and members of his cabinet are not members of congress. The election of the president is separate from that of members of Congress. In the American case the electorate is not allowed unlimited expression and exercise of democracy, as is the case in parliamentary democracy. American electorate proposes a candidate for president. The electoral college elects the president. The last presidential election is an illustration of this.
The electorate nominate Al Gore for president, but electoral college elected George Bush as President of the United States of American. A limit has also been placed on how many times the electorate can nominate the same candidate for president. It can only be done twice and no-more. And because the president is not a member of Congress and his election is separate from that of Congressmen, this limitation does not affect congressmen. If the president had been a member of Congress, limiting his tenure office would have meant limiting that of Congressmen as well.
That is why it is not easy or prudent to limit the tenure of office of, a leader in a parliamentary system, without at the same time, limiting the number of times that same leader can be a member of the legislature.
The durability of American system is not only due to a well constructed structure, but also to a well entrenched social system, the shared value system that informs and sustains that structure. The normative element is as strong, if not stronger than the structural element. The framers of the American constitution were all white protestant Anglo-saxon male. This protestant Anglo-Saxon culture which is transmitted through the English language is what makes the American system enduring. To be an American one is required to know and to speak the English language in order to be integrated into the American way of life. Protestant Anglosaxon culture is the dominant culture of the American system of Government.
Perhaps the best example of the importance of the normative element in constitution making is the British constitution. Soon after our independence, a presidential sytem was grafted onto a parliamentary one. The resulting mixture does not seem to have worked well. We took the structures of the two systems, but without the normative elements that sustain them.
It is almost wholly normative. The stability and durability of the British system of government is further testimony of how a shared value system can hold a nation a state together.
This type of value system may be enhanced or diminished by the structure that is imposed on it. This is particularly so in a country like ours. We as a nation have experienced four systems of government. These are federal, unitary, parliamentary and presidential. We started with a federal structure of government. It was tried for about a year. Thereafter it was abolished. Federal system of government in Kenya was not given a fair trial. This time round I would like to see it given a fair trial. A consensus seems to be emerging that indeed this be the case. There seems to be some misunderstanding on the part of some people as to what Federalism details. Federalism is a political arrangement. It is a power arrangement. It involves devolution, or distribution of power to various centers in a country and defines how those centers are related. Federalism is not an elenomic arrangement.
It is not about distribution of resources, even though it entails development of resources. Federalism thrives under any system of economic arrangement. Indeed virtually all the countries that have a federal system of government have different economic systems. Some have capitalism, while others have socialism.. Some have a mixture of both. While others, like Somalia (Republic or Uganda under General Amin, practice an economic system that is difficult to describe. There is no country in the world, and which practices a federal system of government, where all regions are equally endowed with resources. Some states in U.S.A for example, are near deserts others are rich farm lands or industrial complexes. Federalism is not about citizenship either. All who reside in any region of a given state are citizens of that state. Federalism does not diminish enjoyment of the rights of citizens. On the contrary it enhances enjoyment of those rights, by placing responsibility for affairs of citizens into their own hands.
We replaced the Federal structure in Kenya with a unitary one. That is what we have today. There is no doubt that it has been successful in keeping the country together. However it appears that it has not worked as well as it should have to a majority of Kenyan elites. Formation of a commission to review the constitution is in itself acknowledgement of that fact. If then it is accepted that the present constitution is defective, then we either correct the defect and the current constitution continues to be in place or look for an alternative. There is a commonly held view that the original independence constitution has been amended beyond recognition. And that the original constitution was desirably and ideal for Kenya.
If this is Consensus, then the work of this commission will be easy. All you need to do in that case is simply remove that original document from the shelves and recommend it to parliament for adoption.
But I doubt that it is that simple. The country has changed a great deal since independence.
We have new varying experiences that need to be taken into account. We have different sets of problems to deal with. The most pressing ones are ethnicity and power relationships. This commission will have to pay special attention to these two. The need to tackle ethnicity is a pressing one. It is the root cause of most conflicts throughout the world.In the late 1970's and in 1980's a phenomena developed in the world, which eventually led to the holding of a United Nations Conference on indigenous people of the world. What had happened and continues to happen to-day is the universalization of ethnicity. This in practical terms has meant ethnization of politics as well as politicization of ethnicity. This has led to various demands by various groups, communities, on the states where those demands have not been met, adequately, conflict has been the result. Conflicts that occurred in Africa, Asia, Europe can be traced back to ethnicity.
The question that needs to be addressed is when does a settler become indigenous? The answer to this may provide a solution to conflicts that are related to ethnicity and may help in the construction of an enduring constitutional order in Kenya and in many parts of the world. Professor Mandani asked this question in his indigenous lecturer, but did not provide an adequate answer. Conflicts in the Congo, Rwanda, Siera Leone, Liberia, Indonesia, Yugoslavia, Kosovo, Macedonia, the Middle-East, name them have an ethnic connection. In our own case, conflict in Likoni and in parts of Rift Valley, had an ethnic connection; them and us.
To find an answer to the problem of ethnicity we may need to revisit both our precolonial and colonial experiences. Pre-colonial communities had a way of absorbing settler into a dominant culture. Ceremonies were performed to absorb settlers into a clan, or into a value systems, in order to provide settlers with identity. That is why there are no pure ethnic communities. Some of these pre-colonial values may need to be revived and incorporated into the new constitutional order so as to give it a social, normative base. There ought to be something that one does to become a Kenyan, apart from simply filling forms. We may require anyone who wishes to become a Kenyan to know and to be fluent in kiswahili, for instance among other things. Clearly it is within the mandate of the commission to find a common value system that unites kenyans and to incorporate that into our constitutional order.
Colonial experience instructs us differently colonial society was a racially divided society. There were two distinct societies in one. There was the settler community on one side. Africans, natives were on the other side. The natives were subjects and were divided into reserves and given customary identification. Settlers were citizens and enjoyed what are called civic rights. After independence, racial distinction was abolished, as was the distriction between subjects and citizens. Everyone became a citizen and was entitled to enjoyment of civic rights. But the indigenous populations still retained customary, or ethnic rights which were and still are territorially defined. These are group rights. What is wrong with the current constitution, in my opinion, is the fact that it concentrates on individual, civic rights and is weak on group, customary, ethnic rights. In other words it lacks a strong normative base. I hope the commission will come up with a balance between these two.
In conclusion, I see this constitutional reform in three phases. The first one is to sort out the politics of the country. This will require a power structure that will permit a healthy political game. This is the structural aspect of the constitution. The second thing is to identify a social order that will hold that structure to make it endure. This is the normative aspect of the construction. The last thing is to set up rules and regulations that will help to enforce the social order identified and to regulate the political game that goes with it. These rules impose punishment on those who do not comply, and also distribute rewards.
This is the legal aspect of constitution making. This Excercise is an enomous task, But I believe you commissioners will meet the challenge posed by it. At times you may require define intervention.Remember all the constitutional systems that have endured, have a strong value system as their base. UK, U.S.A and India provide examples.