By CISA Editor,
Kenyans have voted overwhelmingly in favour of the proposed constitution and a new law will soon come into force.
With seven of eight provinces convincingly endorsing the new constitution, Kenyans are again relishing a victory that only unity can bring to such a divided people. However, this campaign also revealed that old sectarianisms are festering, and new ones emerging that Kenyans should begin to deal with immediately once the new constitution is enacted. While it is in order to congratulate ourselves for making such a peaceful transition from the old to the new, it is worth posing and asking a few pertinent questions.
Acknowledging that the journey has been long and arduous, in actual fact the hard work lies ahead. What can Kenyans expect next? In many ways, the new Constitution is merely a framework. It requires many new pieces of legislation to be enacted, in order to give it efficacy.
Does the Attorney-General’s office have sufficient manpower and expertise to draft the necessary legislation in the short time available? In addition, will Parliament deliver on the requirement to enact all the new Acts?
Unfortunately, if experience is anything to go by, the Legislature — despite their world-beating salaries and multiple benefits — are notoriously slow in enacting new laws. Many Bills have been gathering dust in Parliament for ages.
There is also the real risk that in the rush to enact new Acts of Parliament, inadequate thought may result in shoddy and poorly drafted laws.
This is an urgent issue that needs to be addressed. Many in the international community who have supported the enactment of the new Constitution now have an opportunity to assist Kenya by providing technical assistance in the drafting of proposed Acts.
The legislation that needs to be put in place includes issues relating to citizenship, the Bill of Rights including enactment of rules by the Chief Justice providing for court proceedings regarding the enforcement of human rights.
Likewise, several new institutions need to be set up. These include the National Land Commission, the Kenya National Human Rights and Equality Commission and the Judicial Service Commission amongst others.
It is also likely that a great deal of litigation will flow from the new Constitution. For example, claims on the basis of enforcement of rights created under the Bill of Rights may arise to challenge the unconstitutional nature of state action.
In addition, existing legislation will be subsidiary to the new Constitution. Therefore, there are likely to be a number of instances where legislation could be challenged on the basis that it is in violation of the new Constitution.
Litigation will also be encouraged by the manner in which many parts of the new Constitution have been drafted. It is noteworthy that in several sections, the new Constitution has been drafted in very general, almost poetic language.
For instance, Chapter Twelve of the new Constitution which deals with public finance provides for “equitable sharing of the burden and benefits of the use of resources and public borrowing”.
One can well imagine litigious lawyers having a field day debating the meaning of such provisions.
Whilst there has been a great deal of focus on issues relating to land, abortion, the Kadhis courts and the structure of Government, the new Constitution has major implications for businesses and consumers alike in ways that have not been the focus of much attention, but which could have profound practical impact.
For instance, the new Constitution provides that consumers have the right to goods and services of reasonable quality.
The question manufactures and suppliers of goods and services faced by is what this exactly means for them. If they have contracts in place which exclude product liability, are such contracts inconsistent with the new Constitution and do they then automatically become void?
It is also noteworthy that the new Constitution requires Parliament to enact legislation to provide for consumer protection. The question that arises is whether such provisions take effect once the new Constitution is enacted into law or whether such provisions only become effective once the required law is enacted.
One of the more contentious chapters in the new Constitution has been Chapter 5 which deals with land and the environment. On the part of Churches in Kenya, particularly the Catholic Church owns huge tracts of land on which stand monumental projects for the good of Kenyan. It behooves the hierarchy of the Church and all those concerned to work within the proposed constitution and render all these lands the legality required.
New legislation will be required to give effect to the provisions regarding disposal of public land, the revision, consolidation and rationalization of existing land laws and to prescribe minimum and maximum acreages while enabling a review of all grants of public land to establish their propriety or legality.
This is a herculean task and is likely to be met with significant resistance.
However, these are pieces of legislation which will be required to be passed as expeditiously as possible in order to avoid the uncertainty caused by the new Constitution that currently surrounds investments involving land.
For instance, the New Constitution provides that on the effective date, any freehold interest in land in Kenya held by a person who is not a citizen shall revert to the state to be held on behalf of the people.
Ordinarily, a lease is subject to terms and conditions. It is not clear what terms and conditions will apply to such a lease.
Likewise, it is not clear whether the holders of such land are required to return their freehold titles to the government for cancellation and issuance in return of new titles.
Since this remains unclear, it adversely impacts the ability to execute transactions involving such land, which in itself has a negative effect on investment and development.
If a non-citizen who before the enactment of the new Constitution holds freehold land and is currently in the process of selling it to a Kenyan citizen, does the interest transferred constitute of a freehold interest or a leasehold interest?
What documents are to be applied in transferring the land taking into account that land documentation must comply with prescribed forms.
Also, if a non-citizen previously held freehold land and had granted a lease of more than 99 years to a Kenyan citizen, what happens to such interests upon the new Constitution coming into force?
These are questions with no easy answers at this stage.
The devil is always in the detail. This new Constitution requires a great deal from our leaders both political, religious and civil society, otherwise the perceived benefits from this new Constitutional dispensation will remain a chimera.
No one is precluded from contributing ideas how the new constitution should best be implemented. President Kibaki and Odinga have created a broad coalition of reformers from among youth, civil society, business and professional groups. It is this coalition which in fact championed the yes campaign when key politicians were still reluctant.
Such teamwork, which they rededicated themselves to upholding on last week, will be vital in translating the new constitution into reality. Civil society in particular should seize this goodwill for reforms and propose guidelines for implementing the new constitution’s principles of justice, equity, human rights and integrity guaranteed in public administration.
The international community must also continue to ensure that the leaders never lose focus on the implementation of the constitution, which they could easily do if that proves expedient to their calculations for elections in 2012.
It was good seeing the US and EU diplomats stressing at their media briefing the onerous responsibility of Kenyans to follow the constitution’s passage with diligent institutional reforms within the stipulated time limits, since international support for the implementation of the constitution will be important for its success.
There is nothing worse than uncertainty about the constitutional framework for the stability of a country’s legal system, since it is the bedrock of all laws.
The question we still can’t answer is whether we are up to the challenges we have posed ourselves, by voting in such overwhelming numbers for the new Constitution.
Time will tell whether decades of debate and discord have been worth it.
