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?