Ghai heaps praise on draft but cautions on devolution pace

• A former Constitution of Kenya Review Commission chairman, Prof Yash Pal Ghai, does not support a hybrid system of government. He chaired the CKRC from 2000 to 2004, before returning to the University of Hong Kong, where he teaches public law. He argues that only a few countries have had such a system, and they are not successful. Prof Ghai talks with SAMWEL KUMBA.

QUESTION: Do you think this draft constitution improves upon the other drafts — Bomas, Wako and Kilifi?

ANSWER: The draft is closest to Bomas. This is not a bad idea since people have expressed strong support for Bomas. The Wako draft, based in large part on the Kilifi one, was defeated in the referendum. The Bomas one was prepared after wide consultation with the people, and each article was adopted by the National Constitutional Conference, with at least a two thirds vote.

But the Wako one was drafted undemocratically by a small group of politicians. Important differences between this draft and the Wako one are that the former rejects the executive president in favour of a parliamentary Cabinet and restores meaningful devolution dropped by Wako. This draft improves upon Bomas in restoring the recall of MPs.

Are there specific proposals in the draft you take issue with?

I’m not happy with the electoral systems, especially for two houses at the national level. For the National Assembly some form of proportional representation in the National Assembly would have been better.

The composition of the Senate is not consistent with its purpose as a forum for negotiation between the central and the regional or county governments.

Since he is not to be “executive”, the president’s election should be by an electoral college, not universal franchise. These were also weaknesses of Bomas. This draft makes it harder for independents to contest elections, which is unfortunate. I have reservations also about the proposal for a constitutional court, which was not in the Bomas, especially now that we are to have a supreme court.

Some commentators have raised an issue with the draft’s size, arguing that a constitution should be a lean document; what’s your take on this?

There are two main reasons for the length. One is the tendency to repeat some provisions and a somewhat verbose style of drafting. There is certainly a case for considerable redrafting.

Another reason is that the draft covers a number of values and principles in addition to the system of government. In a developing country with a great diversity of people, the constitution also serves as a social contract among the people, establishing common values and social solidarity.

This is often done through balancing of ethnicity and religion, with a national identity (recognising different cultures, religions and languages, and yet building strong citizenship). There is much emphasis on nation-building, not merely state building. It seeks to provide a vision for us as Kenyans and for our people as a nation.

It deals with discriminations and injustices of the past — against women, the disabled, pastoralists and other minorities. The constitution also gives guidance on issues critical now and in the future, particularly land and the environment.

It responds to our past experience of governance: corruption, authoritarianism, centralisation of power, by creating new rights and institutions. This reflects partly the loss of confidence in the state and politicians and so the constitution sets out policies and institutions which could otherwise have been left to ordinary legislation.

I support this approach, although I believe there is still room for some pruning.

The Committee of Experts appears to have drafted laws on issues such as women and minority representation, the role and function of political parties. Do you think they may have usurped the role of Parliament?

No I do not, for these issues are essentially constitutional issues, values and the framework for governance and must be in the constitution.

The proposals on the roles of the President and the Prime Minister have generated the most heat. Comment on the proposed structure and how it would work.

It is interesting that while ordinary people are interested in public morality, livelihood issues and those of human rights and human security, politicians have been obsessed by the structure of the Executive.

This may mean that Kenyans think of the constitution as reflecting values, rights, social justice and clean government, but politicians think of the constitution as an instrument of power and domination.

Politicians have provided no reasoned case for either presidential or parliamentary system. We must decide on the system of government not on the basis of the ambitions of politicians, but on principles of democracy, participation, accountability, and efficiency.

That is what we did in the CKRC and to some extent in Bomas. I support the Draft Constitution on this issue. We need to move away from the cult of presidency and the abuse of presidential powers which are responsible for so much that is wrong in our public life.

Also, as multi-ethnic state, we must aim for institutions which are inclusive, which the presidency is not.

Do you think such an arrangement is unique to Kenya? Where else has it worked without causing friction or confusion?

I do not support what is called hybrid systems. Only a few countries have them, and for the most part their experience has not been happy. The draft does not propose a hybrid system, but a relatively standard parliamentary cabinet system.

We should not call it a prime ministerial system, because general executive authority is not vested in the Prime Minister but the Cabinet, which is a collective decision making body. The debate on this issue has been very confused and unhelpful.

Do you see areas where it can be refined to remove grey areas?

Many! For example, presidential powers of appointments. And the whole area of devolution—very badly drafted!

Kenyans have only 30 days to debate the draft constitution and suggest amendments. Do you think the period is adequate?

Definitely not. People in some areas have not even received copies of the draft. They have to understand and analyse it, discuss it among themselves and give their comments to the committee. The draft is long and it is certainly not easy to understand without much study.

How does the current draft compare with the one that was rejected in the 2005 referendum?

In brief, this draft proposes a parliamentary system and devolution which were excluded by those who instructed Wako. In 2005 I wrote 15 articles comparing the Bomas and Wako drafts — mostly to the disadvantage of the latter.

What is the best way to build consensus on contentious issues to prevent a repeat of the 2005 debacle?

Keep politicians out of it! They have a conflict of interest, and cannot be trusted to protect the national good.

It is hard to have a consensus when personal interests dominate. Paradoxically, it is easier to get consensus if differences are of policy and decision makers are honest and open to reason.

In your opinion, what issues can make or break this draft?

It seems that politicians are mainly concerned with structures of power and access to the state, and since they are in the driving seat, the structure of the Executive, where power, money and patronage are located, that may remain the most contentious. Devolution is also about power, and already a campaign to delegitimise it has begun.

How would Kenyans block the political elite from hijacking the draft debate?

Kenyans must try to understand the draft, and must give their view to the committee and to the public. If enough Kenyans support the approach and principles of the draft (even if not all its details), and make this known to the public and to their MPs, politicians might hesitate to disregard it.

What is the risk of the Yes or No referendum next year?

The referendum will be divisive, and if there is a no vote, we shall be stuck with the current Constitution which we have been trying for nearly 20 years to remove.

Do you think the three-tier devolved government is adequately thought through, particularly in terms of its structures, workings, relationship to the centre and financing?

I strongly support the principles and objectives of devolution as outlined in the draft. But I have serious reservations about the details in the draft.
In my view the whole chapter needs careful consideration. I proposed that to the committee in my submission in July. I also believe that this complex topic should be approached gradually and that the constitution should deal with the principles and set up a mechanism to refine it and bring it into operation over a reasonable period.

Any observation on the workings of the bi-cameral legislature?

I think we need a second chamber, if we are to have meaningful devolution. But the way the senate is conceived in the draft shows considerable uncertainty and much confusion.

For a new constitution to take full effect even if it passes the referendum, over 70 separate pieces of legislation will have to be passed by Parliament. Do you think that this might create fresh gridlock further down the line?

I do not think we need 70 separate laws: some specified laws have already been made since Bomas (such as children rights, parliamentary reform).
Many items can be accommodated in one piece of legislation. And some items can be achieved merely by amending existing laws.

Many laws will not be contentious once the draft is accepted. The problem is not as serious as it has been made out to be. If a commission on implementation of the Constitution is appointed as recommended in the draft, this task can be accomplished quickly.

Should the CoE (Committee of Experts) have drafted the proposed laws so that they are debated at the same time as the new constitution?

This would have been ideal, and some of it could have been done.

I participated in the making of the independence constitution of Papua New Guinea, and we managed also to draft a fair bit of required legislation which was passed at the same time as the constitution.