opinionBy Yash Ghai and Jill Cottrell Ghai
As Kenyans prepare for the implementation of a new constitution, in the expectation of a Yes vote, attention will turn to technical questions of implementation. The Proposed Constitution (PC) sets out in some detail how the old order will give way to the new, and how that new order will be made a reality.
On the 'effective date', at most 14 days after a positive referendum result, the new constitution will come into force, repealing the old. While most provisions, including the expansive bill of rights, will come into effect immediately, some, particularly about the executive and the legislature, and devolution, will not do so until the next general elections. Meanwhile a programme of extensive legislative and administrative changes will begin. A new commission on implementation will have a major responsibility to ensure that the new constitutional order is fully established in about five years.
It is not the intention of this article to explore the scheme for the transition to, and the implementation of, the new constitution, however critical. Even more critical are the social and political processes, the interplay of economic, social and ideological interests, which influence, and often determine, the impact of constitutions. A great deal of effort has gone into crafting the PC so that its values and structures will impose themselves on state and society, with much attention to enforcement and remedies. However, the internal logic and dynamics of the constitution will have to compete with the larger social forces, the most powerful of which may have little commitment to its values.
It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people's life, which they use in their daily existence, which governs and controls the exercise of state power, and which promotes the values and aspirations expressed in it. The fortunes of a constitution are shaped by many factors: personalities and elites, political parties and other organisations, social structures, economic changes, traditions of constitutionalism - and by the rules and institutions in the constitution itself.
Older constitutions were instruments of rule: by one community, class or region. The constitution recognised the dominance of that group and provided the legal basis for its rule, but did not create that rule, which was founded on its dominance in social and economic spheres. In these circumstances, the constitution was effective as an instrument of governance.
Many recent constitutions have resulted from a stalemate when no competing group is able to win an outright victory. This imbalance is often reflected in the constitution. Some constitutions are truces; the fundamental problems are not solved. Instead a framework for competing parties to work together is established (as with our Grand Coalition). Some constitutions have been made under considerable external pressure, often in tandem with key elements in civil society. The fluid political situation, which allows a highly participatory process of constitution making, results in a curious phenomenon: the imposition of the constitution by relatively weak and unorganised groups on the ruling class. But the absence of a dominant group committed to the constitution makes its implementation problematic.
Older constitutions dealt mainly with the system of government, establishing principal state institutions, distributing functions and powers among them, and providing some basic rules for relationships among them. They did not explicitly aim to change society. Today's constitutions seek to solve social and political problems: of accountability, corruption, environment, poverty, equitable distribution of property and other resources, recognition of new and multiple forms of identity, and the democratisation of the party-political organisations and processes. In multi-ethnic societies, constitutions have also to deal with relations among ethnic, linguistic and religious communities and between them and the state.
A major obstacle to the implementation of such a constitution is that the state in a country like Kenya is the primary source of power and wealth in society. Corruption is the principal vehicle for accumulation. Since a major preoccupation of the Proposed Constitution is to safeguard public resources from plunder, the only way the ruling class would achieve its objectives is by systematic violation of the constitution, benefiting from impunities that our legal system has bestowed on them. Since the state is so dominant locally - the lasting legacy of colonialism - the question is whether those who are committed to reform of the state will be able to impose the discipline of the constitution on the ruling class, the principal and direct beneficiaries of the state. For though politicians and bureaucrats seem to fight each other, as in the referendum campaign, they are bonded by common interests as a class and will collectively resist reforms. The resilience of social traditions, ideologies, and institutions is a major obstacle to progressive social reform and change. Economic entrepreneurs, who might be expected to favour constitutionalism as the framework for the market, still seek the favours of the state and acquiesce in, if not to promote, the acquisitive state.
The viability and success of a constitution presupposes constitutionalism, a belief in the value of restrictions on power, and the practice of the rule of law, with the emphasis on rules and their enforcement. Paradoxically, countries like Kenya which try to use the constitution for social transformation lack the traditions from which these ideologies spring. This situation is aggravated by a lack of knowledge of the role and content of the constitution among those who would benefit from respect and enforcement of the constitution.
PREREQUISITES OF IMPLEMENTATION
The Kenyan state was born in violence, and has been sustained by violence. Its function has been the plunder of the people and their resources. The ambition of the Proposed Draft is to turn the state towards the service of the people and the moulding of a common identity and loyalties, transcending both corruption and ethnicity. It is to be sustained by its legitimacy, not coercion.
One urgent prerequisite for achieving this objective is the end of impunity, for which an independent, committed and competent judiciary is essential. Another is the implementation of reforms of political parties, which, as in legislation now, current leaders and their followers have steadfastly violated. Most of all, we need to move away from politics as the preserve of millionaires to the birthright of all wananchi.
The new constitution is made by the people, for the people. It is people-centred, the very first article proclaiming their sovereignty, unlike the current one which proclaims the sovereignty of the president. The most essential prerequisite for success of the constitution is that the people act as the custodian of this, their constitution. They should remain engaged in the politics of constitution, with renewed vigour after the referendum. They must use the many opportunities of participation opened by the constitution, at different levels of the state, to advance the fight against corruption and against pervasive poverty. They must transcend the politics of ethnicity, manufactured by politicians to obscure the mechanics and immorality of plunder. They must hold onto the vision of a Kenya that they helped to shape, in numerous meetings and submissions over the years - of a democratic and caring society, based on inclusion and social justice, fundamental human rights, respect for cultural differences but united in our search for harmony and unity, and the common commitment to the worth and dignity of us all.