Constitution making in KenyaThe views of dr. Kamau Kuria
The History of Constitution Making in AfricaThe first topic he touched upon was the history of constitution making in Africa. As Dr. Kamau Kuria explained, there have been two eras in constitution making in Africa, one at the time of decolonization and the other after the fall of communism. The problem with the first generation constitutions is that they were basically documents drawn up by elites. These same elites felt free afterwards to manipulate these constitutions to suit their preferences. Countries which gained independence later were able to benefit from the earlier experience in constitution making and so, in general, their constitutions are an improvement on the first era type. However, they may still have unsatisfactory features. For example, the Ugandan constitution does not permit the practice of political pluralism. Basically, Uganda therefore is still at the stage where Kenya was in 1982.Another example: although Namibia is considered to have one of the best constitutions in Africa, the President, Sam Mujoma, was able to manipulate it to gain an extra term for himself. The country's constitution, therefore, shares in the flaws of the first generation constitutions, namely the fact that it is too easily amendable. When a constitution can be amended easily it opens the door for one-party dictatorships. Malawi, Tanzania and Kenya all became one-party dictatorships constitutionally. In all three cases, the procedure for amending the constitution was adhered to: that is, the amendments were passed by Parliament with the required majority. A notorious European example is the case of Germany under Hitler: he came to power constitutionally!
Protecting the Integrity of a Constitution: Examples from Other CountriesThe principle of amending a constitution is accepted by every democracy for, no matter how wise the makers of a constitution may be, they can never foresee all the problems that will arise in a society.Kamau Kuria talked at length about how different countries are protecting their societies against the making of amendments that are made, not to promote democracy and justice in society but to advance the interests of the government in power. He explained that, however democratic a society may be, there are bound to be times when the interests of MPs do not coincide with those of the people who elected them. To quote him: “There can be no democracy anywhere in the world where the constitution permits Parliament to amend it without reference to the people.” The requirement that MPs rule in accordance with the constitution is one of the two basic devices used to resolve conflicts between the electors and their law makers; periodic elections is the second device. How different countries are protecting themselves against their own legislators is an interesting chapter in constitutional history. Kamau Kuria gave the example of the United States to illustrate the importance of a constitution going through the process of ratification. Its constitution was drawn up by a constitutional convention. But when it was taken to the people for ratification, they considered that it did not adequately protect them against the Government itself. They therefore ratified it only after having added ten amendments dealing with basic human rights. Examples are the 1st amendment, which, among other rights, provides for freedom of association, the 4th amendment, which forbids illegal and arbitrary searches and the 5th amendment, which states that no person shall be compelled to give evidence against him- or herself. Countries have various ways to protect the integrity of the constitution. In India, the Supreme Court made a specific ruling to protect the people against their representatives. The ruling states that the power of Parliament to amend the constitution does not include the power to change its basic structure. In Australia, an amendment passed by the constitution is not considered valid unless it is supported by two referenda: one in each state and one in the country as a whole. In the United States, there is the provision that an amendment passed by the two houses of Parliament must be ratified by ¾ of the state legislatures.
Amending the Constitution in KenyaHaving given examples of protecting the constitution from other countries, Kamau Kuria now came to the case of Kenya. Kenya has had numerous amendments to its constitution. Unfortunately, he could think of only one amendment that had a positive effect on the country. This was the amendment, passed in 1977, which took away from a property owner whose land had been expropriated by the Government, the right to repatriate the proceeds of the compensation to any country of his/her choice. This right, which had been conferred after independence, was obviously detrimental to Kenya since it gave the power of veto of development to a few property owners and made it burdensome for the Government to acquire property for public purposes.The other amendments were all designed to weaken democracy or to banish it altogether. The first set of amendments was passed in 1964: these amendments established the African model of “democracy” as compared with the American model. They concentrated in one person the executive power that hitherto had been exercised by a ceremonial head of state (the Queen or the Governor General) and the powers vested in the Prime Minister. Another amendment abolished the institution of an independent inspector general of police and an independent police service commission. This amendment effectively took away the neutrality of the police force vis-à-vis political parties and the government in power. Since that time Commissioners of Police see themselves as appointees of the President and his ruling party, they must therefore obviously do their bidding. A 1968 amendment abolished the institution of an independent presidential or local government candidate. This meant that unless a person was endorsed by a political party he or she could not be elected. Minority views were therefore not allowed. Conditions for Independent Constitution Making Absent from Current Process in Kenya Kamau Kuria gave two conditions that must obtain if constitution making is to have the necessary independence. The first condition is that the government in power must play only a facilitative role and must be expressly prevented from using the power of its incumbency, either to assure itself of longevity, or to prepare grounds for its supporters to take power under the new constitution. The second requirement is that the process be informed by the best constitution making traditions, namely (1) that the constitution be drafted by the nation's best men and women in terms of excellence, integrity and general moral character; and (2) that the draft constitution be submitted to the ordinary people for debate and ratification, either through a referendum or a ratifying convention. It is obvious, according to Kamau Kuria, that the current constitutional review process in Kenya lacks the necessary conditions for its independence. To begin with, it has started off on a problematic footing. Says he: “The very Government which is need of reform, is overseeing the constitutional review process.” This obviously cannot work. He referred back to the time of the making of Kenya's present constitution to illustrate this point. When constitutional conferences were held in 1960 and 1962, a coalition government facilitated the process. The nationalists did not trust the departing government to oversee the process nor did the various political parties trust each other: one political party cannot be trusted to advance the interests of other political parties. The current constitutional review process is therefore doomed to fail, the reason being that it is being facilitated by a party that banished democracy between 1982 and 1991 and that has since put the democratization of the country on hold.
The Seven Organs of the Current Review ProcessKamau Kuria then outlined the seven organs of the current review process and showed the pitfalls to which they are subject.
The Alternative – an Interim ConstitutionIf the present constitutional review process is fatally flawed, then what is the alternative? Kamau Kuria is quite clear about what the alternative should be: Kenyans must demand an “interim constitution.” This calls for the conversion of the present constitution into an interim constitution through major amendments. It would establish a transitional government under which the constitutional review process would be completed. “Anything else,” Kamau Kuria says, “will simply be another formula for perpetuating the status quo.” He feels that without genuine reforms we will be heading either for a revolution or for the type of “people power change” which we saw in the Philippines or Indonesia.Our present situation, says Kamau Kuria, can be compared to that of South Africa during their struggle for a people-driven constitution. Before they reached this point, prior to August 1993, the declared Government under De Klerk sought to control the constitution making process in their favour so that they could continue ruling the country. When they realized what the Government was up to, the ANC resorted to mass action that lasted for six weeks. The South African Government was then faced with two choices: either a negotiated change or a violent revolution. They gave in to the ANC's demands and from then on the Government became a facilitator of the constitutional review process. The Convention for a Democratic South Africa (CONDESA) worked without government obstruction and the result was a people-driven constitution. One would expect that, given the present situation, Kamau Kuria would be very pessimistic about Kenya's future. But he is not. He sees all that has happened since 1991, from convincing the Government to see the need for political pluralism to its agreeing to a comprehensive review of the constitution in 1997, as a continuous struggle on the part of Kenyans for democratic governance. He looks at our present economic difficulties as a blessing in disguise for he believes that they will unite Kenyans in their demand for a government that will deliver in the short as well as in the long run. Whatever happens in the interim, he is hopeful of a good outcome. But the struggle on the part of the people must continue.
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