Proposed and Current Constitutions: Comparative Overview

*We continue analyzing the proposed constitution – Editor.

The proposed and the current constitution are fundamentally different in many respects: style of drafting, structure, scope, and orientation. It seems as if they belong to different generations. The current constitution reflects the approach and ideas of the 1960s (as developed by the British, without a tradition of written constitution). The Proposed Constitution of Kenya (PC) reflects a contemporary style and purposes. It should therefore be easy for Kenyans to decide which they prefer— which is more responsive to values and aspirations of the people, more likely to solve our problems, particularly of poverty, inequality and social justice, more likely to promote democracy and citizens, rights, and above all, which offers them a better vision of their country, and the possibilities of reaching it.

Drafting style

The current constitution relies much more than the PC on legal terminology and jargon. It assumes that its readers are lawyers and judges, while the PC regards the people its primary audience, and is drafted so that they can understand it if they make the effort.

The current constitution gives relatively little guidance to the purposes of the institutions it establishes. The PC provides precise purposes and responsibilities of institutions. For example, it sets out the principles of the electoral system (both of franchise and administration), defines the role of parliament, and therefore of parliamentarians, tells us about the reasons for land policies that the state must follow, prescribes the ways and the purposes for the exercise of state power, and states the objectives of devolution. This not only tells institutions how power is to be exercised, but provides valuable education to the people about democracy, human rights, accountability, national integration and social justice. People can relate more effectively to the constitution, and indeed be inspired by it.

Values, aspirations and policies

The current constitution does not tell us what the constitution is about: it is dry as old bones. It does not even have a preamble (the only constitution that we know which does not). The PC has an inspiring preamble: it acknowledge the sovereignty of the people to give us the constitution; it salutes our heroes; expresses pride in our ethnic and other forms of diversity and commitment to national unity; and recognises essential values by which we want to organise the behaviour of the state and of ourselves: human rights, equality, social justice, democracy and the rule of law—above all the well being of individuals, families and communities. An important chapter sets out the framework for resolving land issues which have deeply troubled the country. It aims to restore land taken illegally from communities or the state to them and institute sensible social and economic policies for the use of land.

The PC reiterates these values in Article 10 (2) making clear that they legally binding (particularly on the state). They appear elsewhere too, in sections on institutions or policies (as for example that of parliamentarians and public officials). But more importantly, they appear in the Bill of Rights which provides an elaborate vision of Kenya and Kenyans. Another approach taken in the PC is the necessity of national integration which can only be achieved by fair and inclusive policies.

There is almost nothing of the vision in the current constitution. It cannot inspire us!

It is perhaps not surprising that judgments by our courts seldom refer to national values and goals in the interpretation of the constitution or laws. The PC specifies that those who are responsible for interpreting them should so in ways that enhance the achievement of these goals.

Structure of the constitutions

The orientation of the constitutions also appears from the sequence of their different chapters. The first effective chapter of the current constitution is on the presidency, and is perhaps the longest chapter. Human rights do not appear until more than halfway through, followed by citizens! This gives the impression that the drafters regarded the executive in the shape of the presidency as the most important part of the constitution—perhaps contributing to the imperialism of that office!

By contrast the PC starts with what constitutes the nation and so gives prominence to citizenship (Kenya after all is not merely territory and government). It then goes on to discuss national values and human rights, integrity and honesty of state officials, essential policies on land and environment, and the representation of people, before turning to the system of government. This is meant to indicate the purpose and responsibilities that state institutions must carry out. And when it turns to the system of government, it places the more democratic institution, the legislature before the executive.

Scope of constitutions

The current constitution deals primarily with the structure of government. It does have a bill of rights, but even there more attention is paid to exempting the state from obligations flowing from human rights than giving rights to the people. It establishes the three principal arms of the state, and covers the public service and the appointment of the police but says nothing about other armed forces, or even of the obligations of the police. There is no provision for local government. There is a chapter on trust land (most provisions on land in the independence constitution were deleted), to reassure minority communities, and one on finance, confined essentially to the budgetary process. Even the chapter on the judiciary is incomplete, at both the lowest and highest levels: it says nothing about magistrates who handle the majority of cases (the PC barely mentions magistrates, too), and does not provide a proper court for constitutional litigation.

The scope of the PC is extensive; issues covered there but not by the current constitution include devolution, socio-economic rights, the regime of land and environment, independent commissions, devolution, political parties, representation including principles of fair elections, budgetary process and other aspect of state financial procedures, integrity of state services, security and armed forces (although there are few provisions on the transparency within and the accountability with security forces).

Even where the PC covers ground similar to the current constitution, the differences of the treatment are striking. Examples are the bills of rights, the current one confined to civil and political rights, the PC including additional political rights (such as the right to information), but more importantly social and economic rights, and rights of members of vulnerable communities. The PC is concerned with people and their problems; respect for the dignity of all individuals and all communities, particularly minorities; with social justice and nation building—not merely in rhetoric but in the dispersal of power and design of institutions. Perhaps it is less successful in this respect, because of undue deference to the PSC’s Naivasha recommendations.

Structure of power

After values, we turn briefly to institutions, principally the system of government (these issues are discussed at some length in following sections of this publication). The current constitution says little about the principles of government. Section 1A (which brought an end to one party rule) says that Kenya is a multi-party democracy. But it gives no indication of the implications of democracy for the purposes of the constitution: there is no mention of the separation of powers, checks and balances, the representation of the people or principles of free and fair elections, or the responsibilities and accountability of the state. Perhaps it is not surprising that many political and administrative practices changed relatively little despite Section 1A.

On the other hand, the PC reads like both a thesis and a manual on democracy; some examples have been given and more details are provided in following pages. Here we make some principal comparisons.

Under the current constitution, the state is unitary, with all power vested at one level, the central. The PC requires the devolution of legislative and executive powers to counties, assures them minimum allocations of funds, and the authority to raise some limited revenue of their own. A chamber of the central legislature, the Senate, is to represent and protect the rights, of counties. We show later that more powers should have been devolved, but at least there is now a framework for democratic and participatory politics at that level.

The current constitution established an extremely powerful office of the presidency, with relatively little accountability. The cabinet is advisory. The president has various immunities. There is an aura about the president’s office (and his powers to reward or punish) that places its holder essentially above the law. A great deal of corruption has been and is associated with wide executive powers, minus accountability. All other office holders, not excluding the judiciary, obey his instructions without question and regardless of its lawlessness. Creating such a powerful office, with the ability to favour one’s tribe and exclude some or all others, has greatly politicised ethnicity.

The PC retains the presidential executive but aims to make it more accountable, with the separation of powers and checks and balances. The present close links between the executive and the legislature will be removed: separating presidential elections from any link with the legislature; ministers drawn from outside; limit on size of the cabinet; approval of ministerial and several other key appointments; and a strengthened parliament are expected to reduce the influence of the president forcing him or her to negotiate with the legislature and in some cases with the counties. Whether the constitution will work in this way or the past presidential practices, many of which were of doubtful legality, remains to be seen. Some may argue that a fundamental break with executive presidentialism is needed (as the CKRC, Bomas and initial Committee of Experts drafts sought to achieve).

A critical factor leading to the dominance of the executive and the rise of the culture of impunity was a weak judiciary which was largely subordinated to the executive and the wealthy. Although the current constitution has a judicial service commission for appointment of judges, who cannot be dismissed by the executive except through a process that prevents arbitrary dismissal, the judicial service commission has turned out not to be really independent. Collusion between the chief justice and the president who appoints the chief justice, aided by subservient attorneys-general, can easily lead to manipulation of the judicial and legal system. Whether the judiciary under the PC would be in a stronger position to resist executive pressures and be generally more competent remains to be seen. The Bomas and the original Committee of Experts drafts were much better than the PC—again due to pressures from the PSC.

The current constitution has few other checks on the executive. The legislature is unlikely to use its power to remove the president because the president can retaliate by dissolving parliament. There is no independent and effective ombudsperson to look into abuse of administrative powers. The PC has a constitutionally protected and independent human rights commission which can also look into abuse of these powers, in addition to the general protection of human rights. There are several other independent institutions in the PC— controller of budget, auditor-general, and electoral and public service commissions, that could help to protect sensitive tasks from political control. In the past the presidents have not honoured the independence of the smaller number of commissions, but it is likely that the more robust framework under the PC might make a difference.

Rules for constitutional amendment

Until recently any part of the current constitution could be changed by a vote of 65% of the members of the National Assembly; no attempt was made to distinguish the more important aspects from the less. This was no real barrier to the change of the constitution, especially during the one party days, and Moi did remove many safeguards against abuse of presidential powers, sometimes within a matter of years. However in the Rev. Timothy Njoya case, the constitutional court (Justice Ringera and Wendoh) held that a constitution could only be replaced through a referendum. Just before the present review process started, the constitution was amended to provide for a referendum if the constitution was to be replaced by a new constitution.

The PC provides now for two methods of amendment, one of which, for the more important articles, requires a referendum in addition to 65% support in the two houses. Otherwise the 65% support alone is required. It will be possible for the people to initiate the process of amendment by a petition signed by one million voters. It is important to give time for the new constitution to develop and become rooted, rather than change it at the first time a difficulty appears.

Implementation of the constitutions

The current constitution has some good provisions but no attempt was made to implement them (such as human rights or legal aid). The implementation of the proposed constitution will be even more of a challenge. It is very ambitious, sets out new values and goals, and makes many changes to the structure of the state and the distribution of power and resources. Realising this, the CKRC and now the Committee of Experts have included a whole chapter which sets out what must be done to fully implement it within a few years, and which institution must implement which provision, including making necessary laws. A commission, working with the National Assembly, will be appointed to ensure implementation. Its work will start as soon as the constitution comes into effect, even before the next election (which will probably not take place before 2012. If the National Assembly fails to pass laws within the prescribed period, it will automatically be dissolved. There is thus a reasonable chance that some at least of the new constitution will be put into effect.

Conclusion

You will find that we are quite critical of certain aspects of the Proposed Constitution. We are worried about the system of government and the possibility that the one office of President will prove so alluring a political prize that the unscrupulous may again be prepared to risk the lives of Kenyans. We do recognise that there are some checks on presidential power that do not exist in the current constitution. We are also disappointed by the weak devolution provisions.

*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 necessarily represent the opinions of CISA.

Is it Possible to Change the Proposed Constitution?

Beginning today, courtesy of an experienced lawyer, CISA will bring you a breakdown of the Proposed Constitution as our way of contributing to an enlightened debate on this all important document. We welcome your questions and comments,

Editor.

You may have read about people saying, “We won’t vote YES unless the proposed constitution is changed before the referendum,” and some others saying, “We can change it after it comes into force.”

Before

The only way to change it before the referendum is to change the law under which this whole process has been carried out (which is rather what happened in 2004-5 so that the then government could change the Bomas Draft to the Wako Draft). But this time, the present Constitution must be changed too. This is because a new section 47A was introduced as a result of the National Accord in 2008, setting up the broad outline of the review process, and steps have been taken under it. Those steps have taken the process out of the hands of parliament. They cannot take it back again without changing the constitution. For this, they need the support of 65 percent of all the National Assembly, which they were unable to muster to propose a single change in the Proposed Constitution as it came before them.

Some people have suggested there can be a change by means of an “Executive Order.” There is no such thing in this country. The president can do only the things that the law allows him.

After

If the constitution is approved by the people, the only way it can be changed is by the new processes set out in the new Constitution. The processes are far more demanding than those that now exist for changing the current constitution.

After a proposed amendment is introduced into the National Assembly, 90 days must pass before it is debated. Then there must be two separate votes where the amendment obtains the support of at least two-thirds of the members (slightly more than under the current constitution!). If the Senate exists this must happen in both house.

Changes to some provisions require a referendum as well. And that must get the support of half of all those who vote, and of at least 20 percent of the votes cast in at least half of the counties (which will mean the counties as defined under the new constitution, that is the 47, old “legal” districts). A referendum will be necessary to change Bill of Rights provisions (such as the right to life, including the abortion issue), the structure of devolved governments (but not their powers) and probably some aspects of land that we understand some people are worried about.

It is true that in some circumstances a popular initiative, supported by the verified signatures of at least one million voters, can compel Parliament to move on the question of amendment. It is unlikely that this will ever be used – surely any plausible position for amendment will be able to get support from some MP to move an amendment in one or other house! The same referendum requirements apply.

The Question

The Review Act requires that the referendum question must be answered by either Yes or No. The Interim Independent Election Commission has decided that the question is to be: “Are you in favour of the Proposed Constitution?”

That is not really the real question – or not the complete question - that voters are being asked. Whatever the ballot paper says, the real question is “Do you want the Proposed Draft Constitution or the current Constitution of Kenya?” The question is NOT:

“Would you prefer the Proposed Constitution to the Bomas Draft?” or

“Would you prefer the Proposed Constitution to the Harmonized Draft?”

In other words, if the vote is “No” what Kenya gets is the existing constitution.

Unfortunately, almost everyone who understands both documents reasonably well would want to answer, “In some ways the Proposed Constitution is better, in some ways it is worse, in some ways it is just the same, and in some ways we cannot tell, mainly because we do not know how new rules and institutions will actually work”.

So each person must decide whether overall they think the proposed is better than the present constitution. “Is it better for Kenya,” must surely be the main question. If it better for a particular group but worse for the country as a whole, it is not really better. And a particularly foolish way to approach the question would be to vote “No” because of some point that is important to you – but which is actually the same in the present constitution.

*The writer is a renowned constitutional lawyer of international repute.

Disclaimer: Views expressed in this section do not necessarily represent the opinions of CISA.