*We continue with the analysis on the proposed constitution-Editor
Principles and Symbols
The long struggle for a new Constitution for Kenya has not merely been for a new document, but for a new society. The Constitution cannot achieve that alone – it will depend mainly on the efforts of the people to USE the Constitution.
The principles and values of the vision of that new society have been hammered out by activists, writers, professionals, and politicians, from the late 1980s, in conferences and negotiations in the 1990s, through the review process of 2000-2004 , and finally in the aftermath of the post-election violence of early 2008, and the agreement that followed it.
These values are:
• Democracy
• Participation – here many people would stress that this does not mean just voting every five years, but involves something more active and continuous
• Constitutionalism and the rule of law - no-one is above the law, meaning that all laws, and the policies that underlie them must comply with the constitution, the laws must be obeyed and enforced – which means an end to impunity, requiring an effective judiciary and other enforcement mechanisms
• Good governance – including accountability of government, public servants and legislators, openness, and effective checks and balances between different parts of government
• Human rights for all
• Equality – including women, and persons with disability, and effective recognition of the need for affirmative action for disadvantaged groups to achieve that equality in a true sense
• Respect for Kenya’s diversity – ethnic, linguistic and religious, which includes ensuring that everyone can be involved in the life of the nation, and the right to live the cultural life of one’s choice
• Satisfaction of the basis needs of the people – which for many would involve enforceable right to health, food, housing and education, as well as equality of access to resources
• De-concentration of power – which people felt had become too focused in one place (Nairobi) and one position (that of the president); the implications of this include for many people (though by no means all) some sort of geographical devolution of power and some major change in the system of government.
• Rectification of historic injustices
Most people would agree with these values – though some might differ on means to realize some of them.
The current Constitution
The constitution we have now is very weak in terms of express values. It could have been used to realize these values. Its human rights provisions are not bad, though not broad enough, and there is nothing in it that condems corruption and abuse of power. It is tainted in some ways by its past; especially, it is weak in terms of machinery for enforcement, and it sets up an excessively strong presidency. It has come to symbolize everything that has been wrong in Kenya. The Proposed Constitution could be used to inspire a renewed belief in values, and in the possibility of a Kenya guided by those values.
In the Proposed Constitution
Where do these values appear in the Proposed Constitution? Some might be seen as symbolic – but symbolism in a constitution is not unimportant. The present Constitution has no Preamble. The Proposed Constitution does – setting out a little of the aspirations of Kenyans, and twice invoking God. The Preamble has a very limited role in formal legal interpretation of a constitution, but a court can use it to help resolve a doubt. This preamble is unlikely to have any such role as all the words used appear elsewhere – many times. Its main function is to set the scene by its emphasis. It may help to attach the people to the document – provided it is actually reflected in the “working parts” of the document.
National days are symbols – and the Proposed Constitution adds Mashujaa (Heroes) Day to the existing Madaraka and Jamhuri Days. Presumably the Heroes are intended to be those who struggled for Independence – but the day could be used to honour a wider range of national heroes and heroines.
Article 10 lists the “national values and principles of government” – which include most of the values identified above, plus patriotism and sustainable development. These values are supposed to be binding on “everyone” who applies the constitution or law, or makes or applies public policy.
The current constitution
The current Constitution has no Preamble and no express statement of national values. Only in the human rights chapter do we find anything that approaches a statement of values. Symbolically, that chapter appears after those in the President, Parliament, Executive and Judiciary. This constitution is primarily about machinery of government.
Comment on the Proposed Constitution
That binding force may be more political than legal. They will have to be used, by being relied upon in political argument, in order to have any effect. They can be used as mobilisation tools and to criticise the performance of leaders – especially of those who voted for the inclusion of values in the constitution!
A creative legal profession and judiciary can breathe life into these principles – by using them as criteria for evaluating behaviour in public life in court cases.
To make them more than words on paper, maybe they should be required by law to be inscribed over the entrance to every major public institution, including Parliament, on letterheads and so on. Maybe that way they may eventually be inscribed in the hearts of Kenyans and the consciences of the leaders.
*The analysis is courtesy of a team of lawyers led by an experienced Constitutional Lawyer of International Repute.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
No comments:
Post a Comment