Thoughts on the Harmonized Consititution: Introduction

by Samuel Marete

A read-through of the Committee of Experts’ (COE) Draft Constitution (final version) revealed it to be an intriguing document. This is a sure sign that I am aging. Much in the Draft is good, but there are also some aspects about it that are not so desirable. Over the next few weeks, with articles every Tuesday and Thursday, I shall attempt to examine what I believe to be the important areas of the Draft, under the following headings:

1. Introductory thoughts (this article)
2. The evolution of the current document
3. The Bill of Rights (including discussions on the non-secularity of the Constitution, manner of its amendment, abortion, capital punishment, rights of minorities, the right to demonstration)
4. Elections
5. The Executive – Presidential powers, manner of election, etc
6. The Legislature (the bicameral house, “burden of Government”, new manner of boundaries, devolution)
7. The Judiciary (new structure, Kadhi courts)
8. Taxation
9. Land, property and the environment
10. Independent commissions

Introductory thoughts

I have heard it suggested that the final Draft is too long. The American Constitution has been given as an example of the kind of Constitution we should really be enacting. Purely on the basis of form, this is true. The Constitution of the United States of America is about 20 pages long. The final Committee of Experts Draft is 211 pages long. Ideally, we should have a short succinct, document containing the inalienable human rights and the structure and functions of Government. The rest should be defined outside the document. However, substance-over­-form dictates that our Constitution is necessarily bloated. I see two justifications for this:

1. Our Constitution must compress the lessons learnt from more than 200 years of man’s struggle to understand and codify human rights and develop just laws into one document. The slavery question was settled nearly 1 century into America’s existence. Civil rights for the “free” slaves was enacted into law a century after they had been “freed”. I do not believe that we have the time as a nation to follow a similarly empirical path to progress or that such a path is necessary.
2. For our Constitution to remain brief, the rest of law must necessarily be codified through Acts of Parliament. Our nation labours under an acute lack of visionary, public-spirited leadership. To rely on legislators (current or future) to pass progressive bills into law would be to sentence any chance of meaningful reform to death at a stroke. Two examples suffice:

a)     Here in Kenya, we certainly cannot rely on our Parliament to pass many of these restrictions as Acts of Parliament. The current Parliament’s inability to pass a single amendment to the Draft, including amendments the President had promised he would deliver and despite a Presidential moratorium on foreign travel by ministers should be instructive.

b)     It might be argued that our democracy has not matured enough for lucid and objective lawmaking. However, stubborn legislatures with conflicting interests are not a uniquely Kenyan problem. We should remember the Presidential arm-twisting, bullying, and old fashioned carrot-and-stick tactics it took for Lyndon B. Johnson to cajole a recalcitrant legislature into passing civil rights legislation 40 years ago. More recently, despite the fact that healthcare reform is badly needed, President Barack Obama struggled to enact meaningful healthcare reform laws, though these laws are sorely needed. In the end a watered-down bill was passed that is the beginning, rather than the embodiment, of meaningful healthcare reform. It is likely President Obama will face similar difficulties convincing the legislature to pass effective financial sector regulation laws, even against a backdrop of the worst recession since the Depression of the 1930s.

These two examples serve to show that history presents us with a rare opportunity – the chance to begin afresh, to start anew, to fast-track progress without the interference of narrow interests and obdurate politicians. But should we seize it?

Next Tuesday: The evolution of the current document