When he left the country last week after a gruelling three years chairing the Constitution of Kenya Review Commission, Prof. Yash Pal Ghai was a disillusioned man. He had been through the “most frustrating” experience in his life, which twice prompted him to seek to resign. As he left, he was reported in the media to have sworn “never again” to do anything akin to what he had been through.
It is understandable that the good professor should have felt that frustrated. Kenya is a country of contradictions and conflicts of diversity in opinions, ethnic communities and economic classes.
Prof Ghai had come to the job with the best credentials anyone could have. He had studied Kenya’s extensive constitutional history. In 1970, after a very extensive study and research, he coauthored the book, Public Law and Political Change in Kenya: A study of the Legal Framework of Government from Colonial Times to the Present, which remains the most authoritative study of the constitutional history of Kenya up to 1970. It is a must first reading for any student of Kenya’s constitutional history.
After publishing the book, the professor left the country to work abroad. But his stay out of the country totally alienated him from the people and kept him out of touch with their development and aspirations. Having lived through only the first decade of independence, Prof Ghai did not experience the other 30 years that followed up to the moment he was appointed to chair Constitution of Kenya Review commission.
Had he lived through the Kenyatta succession, the 1982 coup d’etat, the clamour for multipartyism and the ethnic clashes of 1992, Prof Ghai might have been more sensitive about the conflicts and contradictions of the Kenyan people. He might have also known that this country has developed new political dynamics, and that the considerations in the 1963 constitution making could no longer apply 40 years later.
He took Kenyans back in time to pre-independence and began renegotiating the basis of nationhood. Whereas regionalism had been rejected 40 years ago, Prof Ghai took us to the same system. He took us back to the Senate, to prime ministership and to tribal boundaries. It was as though the 40 years that this nation has been in existence were irrelevant.
To Prof Ghai, they very well could have been unimportant as he has experienced very little of the changes that have occurred. However, I would not blame the professor over his philosophical approach to the review process. Any lawyer, however learned or intelligent, is bound to make the same mistake if asked to head a similar initiative by a people foreign to him.But the other members of the commission should have guided Prof Ghai through his stewardship. That is why the law provided that he sit with 15 other commissioners who were to be appointed having regard to “Kenya’s ethnic, geographical, cultural, political, social and economic diversity”.
But as a leading Kenyan constitutional historian, Prof Ghai is guilty of intellectual infidelity. When one reads through his views in 1970 and then those he held 30 years later, one has to reach the conclusion that he was not intellectually forthright throughout the review process. The following are some excerpts from his 1970 publication which differ totally from his statements as the CKRC chairman:
On the administrative viability of regionalism:
“It was unrealistic to expect that Government could be carried on within the framework of the new constitution. A times leader commenting on the constitution – ‘a formidable instrument of government’ – remarked that the first requirement was a skilled corps of lawyers and clerks in the Centre and the Regions to explain to legislators what they were required, permitted or forbidden to do under scores of legally worded clauses. It is doubtful if anyone really fully understood the division of powers and responsibilities.
On the ability of local people to run regional governments:
“One of the first acts of most of the assemblies was to enact legislation to give themselves remuneration and allowances while school teachers employed by the regions were not paid their salaries and were dismissed for lack of money.”
On the complexity of regionalism:
“The allocation of powers between the Centre and the Regions was provided for in great detail, greater than in any other commonwealth constitution. In this, it reflects the lack of consensus and lack of careful thinking as to the functions appropriate to each government. The division of powers was complex, elaborate and confusing.”
On the need for tradition in regionalism:
“It is important to remember that the regional structure was a new one, and there had to be a devolution of power from the Centre before it could begin to function. Thus, it lacked a tradition in government, no vested interests had yet been created, and the machinery for administration had to be established, often by transferring personnel from the central establishments to the regions. Under these circumstances, the odds against the success of the regional system were many and great”.
On the possibility of a consensus on regionalism:
“Whatever the assumptions of the permanence of the independence constitution, it was unlikely in practice to last for long. It had failed to satisfy anyone – the high-water mark of majimbo was . the self-government Constitution and the recession from it in the independence Constitution was bitterly resented by Kadu. Kanu was equally dissatisfied – but for the opposite reason – it contained too much majimbo.”
On the financial viability of the regions:
“But the point remains that to an important degree, the regions were dependent on the centre, and short of a court order, there was no machinery for the enforcement of the fiscal provisions. Thus, financially, the regions were far from autonomous, and without strong finances, there was not much hope of viability’in them”.
On the removal of the regional system:
“In this sense, the alterations to the Constitution since independence have been positive. The rigidity and complexity of the majimbo provisions would have acted as a constraint on planning and development and would have interfered seriously with coherence in administration.
“After the alterations, however, central planning is possible, as is a coherent administration. The new system is more flexible and more able to respond to changing circumstances. The potentiality of sharp and permanent divisions manifest in the independence constitution has been mitigated.”
On the creation of a President who is head of state and also head of government instead of a President as head of state and Prime Minister as head of the government:
“There are good reasons why such a system should be adopted. In a developing political system which depends so greatly on the charisma of one person, such a division at the top is confusing and weakening, invites clashes of personality and fails to provide a clear focal point for loyalty and support. ”
On denying Parliament the power to alter a constitution amendment bill:
“But as far as its own back benchers were concerned, the effect was likely to be – and has been – to force them into a wholesale acceptance of the bill. Thus, the government could push through unpopular alterations by putting them together with popular proposals”.
Prof Ghai must still subscribe to these views because, on December 7, 2001, in Nairobi, lie relaunched the book with a preface laying out the context of the review process. He did not renounce any statements he had previously made or revise any views he had expressed in 1970. But he proceeded to give us a draft constitution similar to that of 1963 that he himself so mercilessly castigated.
We need to know from the good professor why there is such a contradiction between his views in 1970 and his actions between 2002 and 2004.
Mr Mwangi is a lawyer and an advocate of the High Court.