Citizens’ input key in Kenya’s quest for new constitution

• Weak and graft ridden states arise when they are left out

As a non-Kenyan, I have been careful not to thrust my views directly into the arena of the country’s politics.  

That said, I have been greatly intrigued by a recent debate on how Kenya’s new draft constitution should be ratified, apparently stimulated by a recommendation, attributed in the Daily Nation (November 10) to Prof Yash Pal Ghai, that the new draft should not be submitted to a referendum. 

I have enormous respect for him as a scholar and for the monumental and surely exhausting efforts he put into leading the work of the former review team.

I have just downloaded a copy of the draft constitution which I have not had a chance to fully digest, but it does appear to contemplate not a referendum but activation of the new constitution when promulgated by the President (article 315). 

From the Daily Nation account of Prof Ghai’s observations, his reasons with respect to ratifying the new draft appear to be more practical than conceptual.

Prof Ghai said that the review process should be insulated from politicians who, he fears, are too focused on questions of power as distinct from those of principle; the likely divisiveness of a referendum in an already polarized country; the cost of a referendum, and simply the concern that if left to politicians the quest for a new constitution may not be realised.

Clearly favours

However, he clearly favours giving citizens more time to give their input. Indeed, he indicated that he believed the one-month period was was inadequate and suggested that the period be extended to three or four months.

The proposition that a new constitution in Kenya, or elsewhere, is best activated on the basis of civil society advisory input on a professionally formulated draft is in some respects novel. It is an alternative to subjecting the new law to political decision through democratic processes by Parliament and/or a citizen referendum and involving both democratic political processes and civil society advisory input.

Recognizing the pros and cons or each of these alternatives, I think that a process that will combine the input of the civil society and a voter referendum is the best both in principle, and in light of post-independence sub-Saharan Africa experiences.

In my view, a constitution is more than just a country’s supreme and guiding legal document regulating the conduct of government.

In a democracy, it is also a compact among citizens on basic rules of the game on the basis of which they can agree to live with one another under one political roof.

Notwithstanding the difficulty of reaching such agreed terms for political coexistence in politically polarized countries, in my view, the more politically polarized a country is, the more important it is that a constitution be a citizen compact.

Until the era of democratization in Africa beginning in the 1990s, most African citizens had little or no opportunity to vote on fundamental rules of the game for their political coexistence with one another.

Most of the constitutions establishing independent countries in Africa were in effect treaties with the retiring colonial powers negotiated by leaders of nationalist movements on behalf of their peoples.