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.

Could one argue that weak, badly conflicted, and corrupt post-independence African states have been, at least in part, the result of lack of citizen input and voting on rules governing their polities?  I would offer that hypothesis.

In the last two decades, with few exceptions, nearly every sub-Saharan African country has experienced democratization in some form.

However, Freedom  House reports, which assess progress on political and civil liberties in most of the world’s countries on an annual basis, show that about a third of sub-Saharan Africa’s 48 countries have made substantially more democratic progress than the others. 

Opportunity

One key factor that seems quite clearly to have differentiated those countries from the others has been that citizens have had the opportunity not only to choose their leaders in competitive multiparty elections, but also to participate, mostly for the very first time, in reshaping the constitutions under which most had been autocratically ruled since independence.

The form and degree of citizen participation in constitutional reform has varied from country to country.  Substantial international assistance has been needed in some cases as counterweights to entrenched autocracy, as in southern Africa.

In those countries, the wishes of citizens were powerfully expressed through the leaders drafting what were nonetheless truly homegrown constitutional charters. 

Significantly, in those countries, constitutional reforms took place prior to initial multiparty elections. 

However, in West Africa, countries like Mali and Benin have become pacesetting democracies on the basis of national conferences featuring extensive citizen participation, in shaping new democratic constitutions.

One way or the other, in each of the pacesetting new African democracies, reformed constitutions have been enacted on the basis of the country’s political leaders acting in response, and ultimately accountable, to energized civil societies. 

Thus, some have termed the last 20 years sub-Saharan Africa’s “second independence.” 

For the citizens of these democracies, it may indeed seem like it was finally the first one.

John Haberson is a professor of political science, City University of New York