Friday, August 6, 2010

Kenya has a Chance of a New Start

By CISA Editor,

This week Kenya has defied expectations. Voting in a referendum on a new constitution was peaceful, and yet the changes this piece of paper could make are potentially momentous.
Among other proposed changes, it will introduce an impeachable president, MPs recallable by their constituents, a land commission to look at historic injustices, an expanded bill of rights, a reformed judiciary. These are causes for which generations of opposition leaders have fought. It took a fraud-plagued election in 2007, in which Kenya teetered on the edge of civil war, to put this on the agenda, as a requirement of the peace deal. It is not a magic wand, but as many pundits have put it – it is a chance for a new beginning.
The campaigning has not been wholly peaceful – six died in grenade attacks at a "no" rally at the start. And the old monsters of Kenya's patrician past have not melted quietly away. Former president Daniel Arap Moi, who suppressed the first major push for constitutional reform by force, was back in his helicopter urging people to vote no, claiming the constitution had been written by outsiders and would stir up ethnic tension. His critics suspect he is more concerned about his vast land holdings, which could be subject of official investigation.
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.

While we cannot explore the scheme for the transition in detail nor discuss the implementation in full, it is critical to point out a few realities. Immensely 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.

These 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 has been the principal vehicle for accumulation in Kenya. 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.

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.
Kenyans 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.

Monday, August 2, 2010

Misunderstandings about the Human Rights

Right to life: On abortion, the Proposed Constitution says

Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

This does not give anyone a right to demand an abortion. If an abortion is carried out to save the life or the health of the mother it would not be a crime. Parliament could pass a law to make abortions possible in other situations (for example if the pregnancy is the result of rape). But this would have to go through Parliament, and full public debate would take place. In fact, as the current law of Kenya is interpreted, it is very similar to the Proposed Constitution. Many years ago a Kenyan court applied English law and decided that abortion to save the life of the mother or avoid serious risk to the health of the mother was not unlawful. The Kenyan medical profession works on the assumption that this is the law. The mention of a “health professional” in the Proposed Constitution was included to deal with the possibility that in a rural area a doctor might not be available to certify the need for the abortion. The significance of the mention of “emergency treatment” is probably that is covers treatment that is not intended to harm the foetus but that would have the side effect of causing or necessitating an abortion (for example, in some countries with strict abortion laws, women suffering from cancer have been denied treatment because it would damage the foetus they are carrying – thus almost certainly condemning the women to death).

The current constitution actually has a very weak right to life: “no person shall be deprived of his right to life intentionally….” Almost certainly that would not benefit an unborn child who is not legally “a person”.

Striking soldiers and police Almost certainly the Kenyan courts would decide that limiting the rights of the disciplined forces would be “justified in a democratic society” and therefore satisfied the requirements of Article 24. However, the Proposed Constitution says explicitly that Parliament can pass laws to deprive the forces of various rights including association and assembly. Such laws already exist in fact – so nothing will change. Apprehensions of rioting soldiers with guns as the result of the Proposed Constitution are nonsense. In fact the provisions seem rather hard on the forces – why should they have no right to privacy, no economic, social and cultural rights and no rights if arrested?

In other words, voting “No” because of concerns about abortion or the fear of the forces going on strike will make no difference: the current constitution would remain in force, and under that constitution the situation is no different.

Gender

Driven perhaps by a sense of past injustice and exclusion, women have always been very active in the constitution review process in Kenya. And gender equity has been a central value of the various Review Acts – though curiously the 2008 Act is less forceful and detailed on this than the 2000 Act. It is of course also important to remember that there may be some instances in which laws or practices work against men. You may have read some claims that women will do very well under the Proposed Constitution, and some suggestions that they have lost out.

The Proposed Constitution

Equality and non-discrimination

The most basic of all rights for groups that experience discrimination is of course the right to equality. The current constitution does say that there must be no discrimination of the grounds of sex. But the Proposed Constitution is fuller and more explicit: there must also be no discrimination on the grounds of pregnancy, marital status and birth (the last refers particularly to whether a person was born in wedlock, and can cover the place or other circumstances of a person’s birth) or health status (that would refer to being HIV positive) (Art 27). It emphasises that women have the right to equal treatment including rights to equal opportunity in the fields of politics, economy, culture and society (Art. 27), in equal rights to marry, during the marriage and in the case of divorce (Art. 45). There are also equal rights to pass citizenship to children and to become a citizen or have one’s spouse become a citizen (Arts. 14,15).

Much discrimination against women comes from society and not the state. It is important therefore that everyone is supposed to respect the rights (Art. 20), and also that the state must protect the rights against interference (Art. 21). Land policy should include elimination of gender discrimination (Art. 60); gender discrimination is probably particularly found in customary law, and there is also a provision that customary law must respect the human rights (Art. 2(4)).

Representation and inclusion

Other important provisions relate to representation in elected bodies, appointed bodies and in employment in the public service (there is some further discussion of these below):

• Special seats for women in the Senate (16 at least, plus one woman representing youth and one representing persons with disability)

• Seats for women in the National Assembly (1 from each county)

• A requirement that a law be passed to promote the representation of women in Parliament

• Special seats in county assemblies to ensure that at least one-third of the members are women (and at least one third men)

• A certain number of women in the Parliamentary Service Commission (at least 4 out of the 11 members – Art. 127(2)) and at least 3 women among the 11 members of the Judicial Service Commission (Art. 171(2))

• the Judicial Service Commission must be guided in its work by the principle of gender equality (Art. 172(2))

• The State must implement “the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender” (Art. 27(8))

• There must be equal opportunities in the public service for men and women in appointment, training and advancement (Art. 323(1))

• National security organs must “reflect the diversity of the Kenyan people in equitable proportions” (Art. 238).

Protective measures

In various ways the state and its organs are to protect the interests and rights of women:

• The right to health care includes the right to reproductive health care (Art. 43)

• There is a duty on the State to have programmes (including affirmative action) for groups disadvantaged by discrimination (Art. 27(6)), which would include women

• Land legislation must recognise and protect matrimonial property including the family home, and the protection of dependants of deceased persons including those in actual occupation of land – who will often be women (Art. 68)

• The Human Rights and Equality Commission .has a number of specific mandates including to promote gender equality and facilitate gender mainstreaming in national development (Art. 59(1(b)).

What will the provisions mean?

On elective representation

The guaranteed 47 seats in the National Assembly (one per county) is similar to provisions in Rwanda and Uganda (Rwanda has one of the highest proportions of women in parliament in the world). By itself it guarantees only 47 out of 349 members (excluding the Speaker) or 13.5% - not much better than now. The position of the 47 women will not be easy. They will have larger constituencies – a bigger area to campaign in, and a bigger area to “take care of” as constituency member. And there may be some risk that they are not treated really equally by their parties (that might think “those are just women’s seats”). On the other hand – they are to be elected by all the voters of the county, so if they do a good job they will be respected by all.

Within 5 years there must be a new law to “promote” the representation of women, among other groups. Women should participate actively in the debates in parliament on this law (and there will be probably be 47 county seat women to play their part in those debates). “Promote”, however, does not mean the same as “guarantee”. In the long run, it is surely better for women if they occupy seats voted for in the same way as men. Parties should be prepared to nominate them to stand for regular constituencies that they can win. After the constitution is adopted women can start to plan for this important piece of legislation, and for women to play their full part in political life.

In the Senate there are to be at least 18 women out of a total of 67 (26.7%). Again this is not as many as one-third, but there could, and should, also be women put forward for winnable county seats. The position of the 18 guaranteed women will be even odder than that of the 47 women in the National Assembly. They will sit in a body that has power only over matters related to counties. They cannot force any position on their county representatives – they are only required to be consulted about how the county vote is to be cast. But again, the law to be passed within 5 years covers representation in the Senate as well, so our comments in the preceding paragraph apply here too.

The situation in the county assemblies will perhaps be easier for women. Right from the beginning there are to be one-third women. And in the smaller assemblies the women members may find it easier to play an equal (or even more effective) role than men. But the peculiar rule about special seats in county assemblies - to ensure that no more than two-thirds of the members are of the same sex - probably means that for some time to come one-third women is the maximum number of women. Indeed there is perhaps a risk that it will delay full equality for women – because parties know that there will be special seats for women they will not bother to nominate women for regular seats. On the other hand – it will give women a chance to perform well, as we have seen, so hopefully by the quality of their contribution women will persuade parties to nominate them, and maybe the “special seats” will become unnecessary (unless and until there are so many women ward members that men have to be protected by special seats!)

On appointive presence

The State is supposed to take active steps to ensure that at least one-third of appointive state bodies are women. This will include commissions and even the national and county governments. It will be part of the responsibility of the Human Rights and Equality Commission to monitor this issue. And if there is inadequate action if might be possible for a case to be taken to court and ask the court at least to declare that the government is not carrying out its responsibility. The way the provision is worded does not seem to suggest that a body is unconstitutional if it is not gender balanced in this way. But, if over time parliament and the government do not manage to achieve this balance, the courts might be persuaded to be bolder in their response.

In the case of the judiciary there is a different provision – about gender equality, as we have seen. What does this mean? You might argue means they should aim at having 50% women judges. On the other hand, it might be interpreted to mean equality of opportunity. But as Article 27 says; “Equality includes the full and equal enjoyment of all rights and fundamental freedoms” - and equality of opportunity for those who have been persistently discriminated against is not enough to achieve full equality, not for many years. This is why affirmative action is permitted, indeed sometimes required.

It is also important that cases can be brought before the courts to protect the interests of groups (Art. 22). Such a group could be women.

On land

Removing gender inequality in connection with land does not mean that a person who chooses to leave his land only to his sons in a will cannot do so. But it will mean that there must be no laws that disadvantage women (or men). Existing laws that do that are mainly customary laws (see below).

The requirement to protect especially the matrimonial property home will be partly satisfied by a law that has been waiting for parliamentary enactment for some time – giving women a better position on divorce as far as property is concerned. Another protection (usually for women but it could be for men) is a rule developed by the courts in some countries that a spouse who is the registered owner or tenant of the family home cannot sell it over the head of his or her husband or wife, leaving them without a home. The provision about dependants of those who have died may not add much to the existing Kenyan law.



On family and custom

Female circumcision is unlawful under the Children Act. “Early marriage” is also banned – but the Matrimonial Causes Act seems to assume that African girls are married by 13! We know that illegal practices persist. Women especially, and society more generally, must use the provisions in the Proposed Constitution that emphasise women’s rights, or these will be as much as dead letter as existing laws.

The Proposed Constitution encourages traditional dispute resolution mechanisms. But very often, unfortunately, traditions were not favourable to women. Various Kenyan laws, and the present constitution, protect customary law from the impact of the human rights provisions. Laws which discriminate are not contrary to the current constitution if they relate to ‘adoption, marriage, divorce, burial, devolution of property on death, or other matters of personal law’. That will no longer be the case as any law, including customary law, as we have seen, that is inconsistent with the constitution will have no legal effect.

On Muslim law

There is an exception to this last rule: the human right to equality does not apply to Muslim law relating to “personal status, marriage, divorce and inheritance”, if that law is applied in Kadhis’ courts. This is mainly of importance to women – because the issues likely to arise are things like favouring the father in custody of children over a certain age, the limited provision for maintenance of wives after divorce, and the difference in inheritance by women and men under Muslim law. It is important to realise that this provision was inserted (as long ago as the CKRC draft) because Muslim women said they wanted it. Similar provisions exist under the current constitution, and under the Law of Succession Act. So even if the new constitution would not improve the situation of Muslim women in some people’s eyes, it would not make it worse.

On language

May be this a symbolic issue, but symbolism is important in a constitution. Compare the current constitution:

“No person shall be deprived of his right to life intentionally….”

With the proposed:

“Every person has the right to life”.

See the difference? The current constitution speaks always of males, and explains that this includes females. The proposed constitution is always phrased so that it is not sex-specific; if necessary it says “he or she”. This is not as bold or as positive as the South African Constitution which always speaks of “a woman or a man” in the context of holders of appointments. The proposed constitution for Kenya moves from male-leaning (women invisible) language to gender neutral, while the South African constitution has what you might term “women prominent” language.

Disability

In Kenya, as in all societies, it is estimated that about 10% of the population have some form of disability. But people with disability have been very much excluded from society. They are anxious not only not to suffer from discrimination, but also to play their full part in public life. In the modern world, people with HIV are among those who suffer from discrimination.

The Proposed Constitution:

The current constitution does not include “disability” among the grounds on which the government may not discriminate between citizens. Indeed, there is not even a general statement that “everyone is equal before the law”. But the Proposed Constitution does provide that there must be no discrimination on the grounds of disability (Art. 27(4)). It goes further and says that there must be no discrimination on the basis of “health status” (which would include being HIV positive). And there is also a general statement about people being equal before the law.

Being treated without discrimination is an important step towards true equality, but more is needed, especially when groups of people have been discriminated against and disadvantaged in the past. There is recognition of this in the Proposed Constitution, firstly by provisions emphasising that true equality means the full enjoyment of all rights. And Article 27 goes on to provide that there must be affirmative action programmes for groups that have suffered from discrimination in the past – which would surely include persons with disability. Another significant point is that the human rights are said to be binding on everyone (Art. 20(1)) – not just on the state. Discrimination is often a matter not of state but of society behaviour. And the Proposed Constitution says that the state must not only respect all the rights but must protect them, and fulfil them. In other words, if the state takes no steps to protect person with disability from abuse and discrimination by others, the state is in violation of its obligations (Art. 21(1)).

There is a specific article (54), which shows how equality should be achieved for people with disabilities. It stresses that they

• must be treated with respect

• have a right to access to education (integrated into society as a whole when this is compatible with the interests of those persons)

• are entitled to reasonable access to all public places and transport and to information and communications

• are entitled to use of sign language, Braille etc. (and there are specific references to the duty of the government to encourage the various means of communication for persons with disability (Art. 7(3)) and Kenyan Sign Language is to be an official language of Parliament (Art. 120)).

There are other measures relevant to persons living with disability:

• persons with disability are to be among 12 members of the National Assembly taken from party lists (Art. 97)

• there are to be two seats for persons with disability in the Senate – one for a woman and one for a man (Art. 98)

• a requirement that a law be passed to promote the representation of persons with disability in Parliament (Art. 100)

• requirement that law be passed to ensure that county assemblies are inclusive of persons with disability (Art. 177)

• the law about elections, setting up the procedure and so on, must take account of the needs of persons with disability (Art. 82)

Are there any problems about the provisions?

The provisions for the representation of persons with disability in Parliament and county assemblies may prove to be very successful. The position of those members may not be easy. Will they be able to put forward the issues of persons with disability? This will depend both upon the forcefulness of the persons elected, and upon the parties that put them forward, which should ensure that the persons with disability are able to contribute to the work of the legislatures from their own particular perspective. The position of the two members with disability in the Senate may be particularly hard. As well as being few, they will be member of a body with functions that seem to be mainly limited to issues that affect counties. It may only rarely be possible to bring a distinctive “disability perspective”. Of course it is valuable as such to involve all sections of the community.

Earlier draft constitutions for Kenya included a principle that all public elected or appointed bodies should have at least 5% persons with disability. This seems to have been distorted in the most recent draft to say that the members of the public in any elected or appointed body should be persons with disability (Art. 54(2)). It is not clear how this change happened – but it seems to have been a mistake, not a deliberate decision to weaken the protection of persons with disability. However, as we have seen, elected bodies are dealt with in separate and specific provisions.

As with rights more generally, the specific provisions to benefit people with disabilities will require a sustained effort, with cases being prepared with persuasive arguments to take to court and the human rights commission.

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