In a sense it is true that we do not have a constitutional crisis in Kenya. We are not a disintegrated nation like Somalia. We are not a war-torn country like Liberia. Nor have we emerged from a prolonged civil war like Ethiopia, Angola or Mozambique. Nor have we undergone a sudden and revolutionary change in our social and political systems as has the Republic of South Africa. Our administration and political systems have not suddenly collapsed as happened in Eastern Europe nor have we driven a regime away from the seat of power. We are not under a military regime to seeking to return power to a civilian administration.
We have a constitution that works, albeit unsatisfactorily. It has served us for the last 30 years during which time it has undergone a number of amendments. These amendments have been designed to render it more operative and have been, to a large extent, the result of political expediency. It however, remains an instrument capable of holding the state together. There is no cause, therefore, to either have to start from scratch or to enact a hastily compiled document of the type prepared by a handful of lawyers allegedly representing the Law Society of Kenya, the Kenya National Human Rights Commission and the International Commission of Jurists (Kenya Section) and released to the public under the misleading title : “The Kenya We Want: A Proposal for a Model Constitution.”
What our constitution requires is a critical revision undertaken against the background of the changes in the body politics, the social and economic systems and the aspirations of the people. Such an examination will no doubt require an overhaul of the present constitutional arrangement and a replacement of the same with a revised instrument to provide for the changed social political order.
One of the basic rules that must be observed in any process aimed at drafting a constitution is that new ideas upon which the draft constitution is formulated must be obtained from the members of the society for whom that constitution is to be adopted.
In a recent article on the subject published by the Nation on November 14, 1994, Prof Kivutha Kibwana states that: “Ideally, the Constitutional Commission is not meant to input its own ideas about a constitution into the draft constitution. If this happens, then the constitution is pre-prepared and is not eventually the product of the citizen’s wishes and interests”. We agree. It was therefore quite presumptuous of the lawyers to draft a constitution and offer it to the public for adoption or acceptance even as a working draft. To do so is clearly putting the cart before the horse. They cannot claim to be able to discern what Kenyans would want without bothering to ask them. Such a claim would be paternalistic and wrong.
The document they have drafted cannot in any way act as a “model”, i.e a finished product of constitutional legislation, or as a first step towards constitutional legislation. It remains a representation of the thinking of a few lawyers prepared without interference to the wishes of the people of Kenya. Nor can the calling of a meeting of 400 people to a seminar cloth the document with any degree of legitimacy. Such a conference cannot substitute for a process of ascertainment of the people’s wishes.
As is obvious from recent Press and parliamentary comments on the constitution, Kenyans are not agreed on what form their government should take, let alone what should be contained in a revised constitution. The only thing on which there appears to be general consensus is that the constitution needs to be revised or overhauled. Beyond that there is great divergence. The drafters of the model constitution are clearly wrong when they state the preamble – “We are the people of Kenya…committed to the future of Kenya as one nation, united and indivisible…”
In the Summary and Highlights of the model constitution, the drafters say that one of the objectives of the constitution is “to prevent the fragmentation of the country into uneconomic and tribal based jimbos that could lead to catastrophe”. Who, one may ask, instructed them to prevent this fragmentation? Why should Kenyans be prevented from debating whether or not they wish to be governed under a majimbo constitution?
It is for the same reason that we have resisted the so-called draft majimbo constitutions that some Members of Parliament have claimed to have been prepared for the introduction to the National Assembly. Everyone has the constitutional right to draw up whatever constitution he may wish to draw. There is no law to prohibit that and perhaps it is a good thing that people who can do so. It is however, quite wrong to present that the document so drawn represents the wishes and aspirations of Kenyans or that one has prepared it at their behest and on their instructions.
The model constitution, for example, contains in articles 1-20 what are termed as “National Objectives and Basic Principles of State Policy”. On what justification are these based? Where did we as Kenyans agree on what the principles of our state policy should be? When did we agree that Kenya is a secular democratic and unitary state? What is the purpose of attempting to sell a philosophy based on mere presumptions? Is this not an attempt to “steal” our will to decide these important issues on our behalf?
Apart from the fundamental flaw of lack of legitimacy, the model constitution suffers from many other weaknesses and shortcomings. It is so generalized in its terminology and so imprecise in its phraseology and language that the meaning of many of its provisions are seriously obscured. It does not take the trouble to define many of its terms thereby making it largely unintelligible. It is an extremely bad piece of legislative drafting. It reads more like a pre-election manifesto for the party in opposition than a legal document.
From the reading of it, one would never suspect that it was drawn up by lawyers. For instance, constitutional obligations are placed on civic bodies, religious organisations, co-operative societies, trade unions, women’s groups generally described without definition or identification. There must be thousands of these bodies in Kenya. Whether all of them shall come together to, for instance, appoint members of the Public LANDS Commission and exactly how they shall do so is not stated.
The vagueness of the instrument can be discerned by reference to some of its provisions. For instance, Section 13 provides that : “Every person has the right and the opportunity, without any unreasonable restrictions:
- To take part in the conduct of public affairs, directly or through freely chosen representatives.
- To vote and be elected at genuine and periodic elections which shall be by universal and equal suffrage and shall be by secret ballot.
- To have access to public service in this country.
What is meant by the conduct of public affairs? What are public affairs? What are genuine and periodic elections? Does it mean that the election of prefects in a high school must be by secret ballot? What is universal and equal suffrage? Does it mean and include the right of children to vote? This weakness of vagueness is only outmatched by that of conceptual inadequacy which mainly stems from the over-zealous urge to provide something different.
These conceptual inadequacies create a totally unworkable constitutional set up. The constitution conceives a President who is responsible for the actions and running of government but who has to seek approval of Parliament to appoint Ministers and has to give reasons before he can sack them. This would seem, to distribute accountability for government between the President and the legislature. In a parliamentary democracy, subjecting the appointment of the holders of ministerial portfolios to a parliamentary majority, let alone the two-thirds majority recommended by the constitution is nonsensical.
In similar manner, the drafters appear to have been driven by the false belief that the panacea for all administrative and executive wrongs is parliamentary approval. They, for example, subject the appointment of the Chief Kadhi to approval of a two-thirds majority of Parliament. The Chief Kadhi, as the drafters must know, is not a publicly elective office. It is filled in accordance with the rules of the Muslim faith. To subject such an appointment to the approval of two-thirds majority of a Parliament that is more likely to be composed of largely Christians, is an unspeakable outrage which cannot be acceptable to the Kenyan Muslim community.
By Lee Muthoga and Paul Mwangi.