*We continue the analysis of the proposed constitution- editor
We have rights because we are human; the government does not give them to us, and in a sense has no power to take them away from us. In reality we all know that governments are major violators of human rights. We also know that other citizens, commercial organisations, militia groups and institutions within society violate rights.
Recognition of rights in a constitution gives people a tool. Perhaps, more than any other part of the constitution, human rights need the active involvement of the people to leap off the printed page and become effective. Government may recognise that to achieve their objectives (good or bad) they need to follow the constitutional rules about the exercise of power. Without vigorous insistence by the citizenry they may be less scrupulous about observing human rights obligations that stand in the way of their own view of the uses of power.
What does the Proposed Constitution say?
An important preliminary point: people often misunderstand human rights provisions, and think that something that says “everyone has a right [to freedom of speech or religion or anything else]” means that everyone can do as they please without any possible limits! This is responsible for all sorts of misunderstanding. So as you read about the rights, please bear this in mind. There is a box below that explains about limiting rights.
The main features of the proposed human rights chapter are:
Strong provisions on non-discrimination, including a long list of prohibited grounds of discrimination, such as disability, pregnancy, marital status, health status (Art. 27), as well as the more familiar gender, race and belief, that are in the current constitution
• Banning of indirect discrimination – that is laws or conduct that discriminates in effect even if not intended to be discriminatory (Art. 27(4))
• Rights are to be respected by all and not just by the state (Art. 20)
• In addition to the most familiar rights (such as freedom of expression, assembly, association, movement, right to property and to a fair trial) that are recognised in the current constitution, various other rights are recognised, including a wider right to privacy (Art. 31), information (Art. 35), media freedom (Art. 34), right to vote (Art. 38) and right to fair working practices, including the right to strike (though not the right to work) (Art. 41), right to use the language of one’s choice (Art. 44), equal rights in marriage (Art. 45), consumer rights (46), right to fair administrative action (Art. 47) and right to a clean environment (Art. 42)
• Clear rights to health, housing and sanitation, food and water and social security (economic, social and cultural rights (Art. 43), and the state has the obligation to take measures necessary to achieve the progressive realisation of the rights (Art. 21) (see below)
• Clarification of how rights apply to various specific groups: children, youth, persons with disability, marginalized groups, the elderly (Arts. 53-57)
• Requiring the state to have policies of affirmative action to ensure that disadvantaged and marginalized groups can achieve true equality (Art. 27(6))
• A duty on the state must carry out its human rights obligations under international law (Art. 21(4))
• A provision that treaties (many of which relate to human rights) that Kenya is a party to are part of Kenyan law (Art. 2(6))
• Remedies – the procedure for going to court to protect rights includes the possibility of bringing an action on behalf of groups or even of other people who are unable to do so for themselves (Art. 23); the procedures must be simple and there must be no court fees for bringing a case to protect human rights (Art 22)
• A human rights commission with a constitutional status, role and protection (Art. 59).
Limiting Rights
It would of course be unreasonable for everyone to claim that freedom of speech means that there is no limit on what they can say. The Proposed Constitution is clear that the law can limit rights (except for 4 rights specially protected in Article 25). But the limitations must be reasonable. And it gives clear guidance about how to decide whether limiting a right would be reasonable. The main test is “is such a limitation on a right justifiable in a democratic society like Kenya”? The courts would decide if there is any dispute, but Parliament should also think about this, and the Human Rights Commission will also give guidance.
Whether it is justifiable to limit a right will depend on what objective is to be achieved by the limit and whether the limit is greater than would be needed to achieve that objective.
So – it will be justified to limit freedom of speech to protect reputations (though the current law on this topic may be too restrictive of freedom of speech), and freedom of religion would not protect Mungiki as someone seems to have suggested!
Some constitutions limit each right individually. This tends to make limitations appear more prominent than rights! That is the case with many of the rights in the current constitution. The Proposed Constitution takes a different approach, one that is legally neater, and more protective of rights.
Affirmative action
Like many modern constitutions, the Proposed Constitution recognises that sometimes more than equality is recognised. Affirmative action may be required for a while to achieve true equality of groups that are held back because of past practices of discrimination. But the Proposed Constitution not only says that such affirmative action is not discriminatory, but is also says that measures needed to overcome the consequences of past discrimination, including affirmative action, must be taken (Article 27(6)).
Overall impression
The Proposed Constitution is a considerable improvement on the current constitution which bans fewer forms of discrimination (and does not include a general ban on discriminatory behaviour); it does ban laws that discriminate in effect as well as by intention. In its style of drafting the Proposed Constitution is clearer, whereas the current constitution lays far more emphasis on when rights do not apply! The Proposed Constitution is very specific and firm about how human rights may be limited (see box). The recognition of economic social and cultural rights is very significant (see below). The right to information may prove to be valuable not just for the protection of individual rights but to facilitate citizens’ scrutiny of government (see section on “Participation”).
Poverty, Basic Needs and Economic, Social and Cultural Rights
Many people do not understand the idea of socio-economic rights (which are new for Kenya in the Proposed Constitution, though Kenya is a party to international treaties that recognize them). Some people ask questions like “how can government have a duty to feed everyone or house everyone?” In the years since the International Covenant on Economic Social and Cultural Rights and other treaties such as the Convention on the Rights of the Child were adopted the rights have been analysed and spelled out by courts, and international bodies in some detail. It is now clear that the main point of these rights is that people must be free to fulfil them for themselves. The state, and others, should not interfere with people’s rights to feed and clothe themselves and to live decent lives. Some rights require more state intervention, especially education (and there is a right to free and compulsory primary education). But the state must do more than stand aside: it must prevent infringement of these rights by others, and if necessary (for example in cases of extreme poverty or drought) must take positive steps.
The Proposed Constitution says that the State must realise the socio-economic rights progressively (Art. 21(2)), and it is for the State to show that it does not have the resources to fulfill the rights if this is its justification for failing to do so (Art. 20(5)). The courts in South Africa (and other countries) have been able to give some remedies for the victims of violations of socio-economic rights, and they should not be regarded as utopian “aspirations” or empty words, but a genuine tool for social justice.
These rights are not only a matter of legal enforcement. They are an agenda for the state (and one that, as we have mentioned, the state of Kenya has accepted). The State (meaning the government and its servants and agencies) must constantly think about how its policies affect the welfare of the people, ensuring that their socio-economic rights are promoted. At the time of the budget preparation, government should take into account its obligations.
Using the rights
The courts and the human rights commission will be stronger under the Proposed Constitution than under the existing law. People should take advantage of this to press for their rights and the rights of others. Traditionally courts usually allowed only people personally affected by wrongful acts to take a case to court, but the Proposed Constitution says that a person or organisation may bring an action to protect the rights of others who cannot bring cases for themselves (this would cover those who are too poor, for example, or situations where large numbers of people are the victims of violations of rights) (Art. 22).
The courts are directed to some extent how they should approach human rights cases. They are told to interpret the law, including the constitution, so as to achieve the realisation of the human rights, and the values that underlie them (Art. 20).
Many people may be unaware that Kenya is required to report on its own human rights performance to the UN Human Rights Council, and to the mechanism under the African Charter for Human and People’s Rights. These occasions can be used for civil society to present counter reports showing where the country falls short. The Bomas draft tried to make the UN process a national event by requiring that the government make the process public and ensure that it was debated at home (it should have included the African process in this provision). Unfortunately, this provision disappeared from the recent drafts.
*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.
Sunday, July 25, 2010
Wednesday, July 21, 2010
Government and Religious Leaders should take Eviction Threats very seriously
*Dominic Nkoyoyo
Many Kenyans from different ethnic groups, who were evicted from their homes in the post election and ethnic violence that rocked the country in 2007-2008, two years later, are still living in camps and dehumanizing conditions.
Unfortunately several politicians in the NO Camp are again speaking loud and clear that if the YES Camp wins the 4th August referendum for the Proposed Constitution, they are going to evict people from their homes. Anybody from any Camp and from any corner of the country planting seeds of hate and inciting people to violence should be arrested immediately and face the law.
The government and Religious leaders should take the eviction threats uttered by some politicians at public gatherings very seriously, for there are clear indications that we are again on the path to bloodshed and untold misery. These threats are a wake-up call to the government to make urgent arrangements so that it is in position and ready to contain any violence out-breaks in the country.
The government should use every good and justifiable means at its disposal to prevent and to contain violence. Religious leaders on their part should confront members of their congregations engaged in hate speech and inciting people to violence and pastorally help them to stop doing so. They should also organize special Radio and Television programmes for this special time of the referendum to preach tolerance and brotherly love. And to remind God’s people that violence begets violence. And therefore it is not good for anything or for anybody! Instead it destroys the very heart of the one from whom it springs.
A lot of attention should be give to places prone to ethnic violence especially the Rift Valley Province. The 2007/8 violence was too big for the Kenyan Police to contain especially in this very Province! And to make matters worse, they had no vehicles to reach in time where the violence was!
Violence in towns can easily be contained than that in remote and hilly regions with very bad roads. For there is always police presence in the towns and the roads are not so bad. And yet it is in these remote areas that the worst violence happens. By the time Police reaches there it already too late! People’s houses are already burnt down and some are already killed. This I experienced personally in Kipkelion which was hit worst in the 2007/8 ethnic violence. When Police had vehicles, they had no fuel! So the big question at this critical point is: «Should violence erupt in remote areas on or after August 4th is the Kenyan government without external help able to contain it?
*Dominic Nkoyoyo is a Monk at the Monastery Val Notre-Dame, Canada.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
Many Kenyans from different ethnic groups, who were evicted from their homes in the post election and ethnic violence that rocked the country in 2007-2008, two years later, are still living in camps and dehumanizing conditions.
Unfortunately several politicians in the NO Camp are again speaking loud and clear that if the YES Camp wins the 4th August referendum for the Proposed Constitution, they are going to evict people from their homes. Anybody from any Camp and from any corner of the country planting seeds of hate and inciting people to violence should be arrested immediately and face the law.
The government and Religious leaders should take the eviction threats uttered by some politicians at public gatherings very seriously, for there are clear indications that we are again on the path to bloodshed and untold misery. These threats are a wake-up call to the government to make urgent arrangements so that it is in position and ready to contain any violence out-breaks in the country.
The government should use every good and justifiable means at its disposal to prevent and to contain violence. Religious leaders on their part should confront members of their congregations engaged in hate speech and inciting people to violence and pastorally help them to stop doing so. They should also organize special Radio and Television programmes for this special time of the referendum to preach tolerance and brotherly love. And to remind God’s people that violence begets violence. And therefore it is not good for anything or for anybody! Instead it destroys the very heart of the one from whom it springs.
A lot of attention should be give to places prone to ethnic violence especially the Rift Valley Province. The 2007/8 violence was too big for the Kenyan Police to contain especially in this very Province! And to make matters worse, they had no vehicles to reach in time where the violence was!
Violence in towns can easily be contained than that in remote and hilly regions with very bad roads. For there is always police presence in the towns and the roads are not so bad. And yet it is in these remote areas that the worst violence happens. By the time Police reaches there it already too late! People’s houses are already burnt down and some are already killed. This I experienced personally in Kipkelion which was hit worst in the 2007/8 ethnic violence. When Police had vehicles, they had no fuel! So the big question at this critical point is: «Should violence erupt in remote areas on or after August 4th is the Kenyan government without external help able to contain it?
*Dominic Nkoyoyo is a Monk at the Monastery Val Notre-Dame, Canada.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
The Proposed Constitution
*Collin Davies
God has given us help to find the true and blessed answers to our efforts to frame the best solution for the future of Kenya.
Let us follow the fours steps proposed that follow:
I believe that most of us can easily give up on looking for an answer to the question about supporting or opposing the Proposed Constitution. Taking into consideration all that has been said, written and done we must not lose this important opportunity to help Kenya move forward towards enacting its fundamental written expression of how the people want to be ruled in order to enjoy the fruits of this land and nation. Even here, it is understood that the Constitution required truly respects the Common Good as the very heart of all its principles of governance.
STEP 1: As brothers and sisters listen and try, with good will, to respect and to understand other citizens’ opinions in order to integrate all that is true from all sources.
To involve all people of good will is the foundation that will help to build up consensus and so unify people after the verdict. The rights of the people must be drawn from what God wants and how He wants it fulfilled, that is, in Unity, Justice, Peace and Love to be shared by ALL in genuine EQUALITY. Unless we bring God into the challenge we neglect His Supreme Wisdom and cannot expect any blessing. Are we not surprised that in the proposed Constitution God is neither mentioned nor are His Laws invoked? How is God to be “our Strength and Protection?” How can He “bless our Land and Nation?” Throughout human history religious values have provided meaning to man’s world and man’s place in it. Through religious beliefs the people of Kenya inculcate values and shape consciences to provide stability in times of turmoil as humans encounter the uncertainties of life.
Unless we have involved God with His values and wisdom we are extremely irresponsible in seeking the best solution open to us in our human situation. As Christians and as a church we have a valuable contribution to make. We do not throw away the moral compass which gives social cohesion and teaches acceptable conduct in the community.
STEP 2: To build on what God has provided, welcome his son, Jesus Christ as our teacher, guide and brother.
All the ideas we hear from other people, especially our political leaders, should be examined carefully in the light of God’s helping guidance of the Gospel, as far as Christians are concerned and the (social) teaching of the Catholic Church as far as Catholics are concerned. It would be irresponsible not to use all the God-given gifts and wisdom which have been given to us individually and collectively. We, ourselves, are called to be the light of the world and the salt of the earth even if others do not have the same advantage. Everyone makes their own contribution fully available and must be considered. Majorities do not ensure the best laws. Patience, rather than haste is advisable.
STEP 3: Recognise that God creates all living beings to reach full maturity and growth, beginning with a small seed which contains all that is internally necessary to become a fully developed living being with its own identity, responsibilities and future.
Whether a tree, an animal or a human being, God creates all living beings to begin very small in size and in a state of dependence. He provides the external agent (like the mother) which will DEFEND AND PROVIDE NOURISHMENT. God has made plans involving growth, not interference or obstruction. The obligation to respect God’s plans for growth and of giving life to a new creature is serious and obvious.
STEP 4: To Recognise the right to life comes from God and belongs to the person exclusively.
No one has a right to intentionally and directly take away life. Everyone has a right to life and that right is given by God and may not be taken away except by God. There are no exceptions whatsoever to that order as stated above. Christ has stated that whatsoever we do to others is done to Him. “Whatsoever you did for one of these LEAST brethren of mine you did for me” Mt. 25 v. 40. When God has spoken, how can we “soften” His plans? The very weak need his protective words and our protective action. His love is for all, including a pregnant mother with her difficulties, but not a to the detriment of another person, a small innocent baby, which is commended to our loving care in Christ’s words “See that you do not despise one of these little ones…it is not the will of your Heavenly Father that one of these little ones be lost” Mt. 18:14. If we concentrate on making a real search for the will of God in our response we will not lose ourselves in the wrong methods
CONCLUSION
If we concentrate on making a real search for the Will of God in our response we will not lose ourselves in the wrong methods. As Christians, we know Christ continues to guide us and to be with us in spiritual matters through those who receive His Mission. The Apostles Do we believe that He is not guiding us now when we really need Him speaking through his present day Apostles in this case the Catholic Bishops of Kenya.
* C.C.Davies is the Bishop emeritus of Ngong Diocese and now lives in Asumbi in Homabay Diocese.
CISA will resume the analysis of the Constitution next Tuesday-Editor
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
God has given us help to find the true and blessed answers to our efforts to frame the best solution for the future of Kenya.
Let us follow the fours steps proposed that follow:
I believe that most of us can easily give up on looking for an answer to the question about supporting or opposing the Proposed Constitution. Taking into consideration all that has been said, written and done we must not lose this important opportunity to help Kenya move forward towards enacting its fundamental written expression of how the people want to be ruled in order to enjoy the fruits of this land and nation. Even here, it is understood that the Constitution required truly respects the Common Good as the very heart of all its principles of governance.
STEP 1: As brothers and sisters listen and try, with good will, to respect and to understand other citizens’ opinions in order to integrate all that is true from all sources.
To involve all people of good will is the foundation that will help to build up consensus and so unify people after the verdict. The rights of the people must be drawn from what God wants and how He wants it fulfilled, that is, in Unity, Justice, Peace and Love to be shared by ALL in genuine EQUALITY. Unless we bring God into the challenge we neglect His Supreme Wisdom and cannot expect any blessing. Are we not surprised that in the proposed Constitution God is neither mentioned nor are His Laws invoked? How is God to be “our Strength and Protection?” How can He “bless our Land and Nation?” Throughout human history religious values have provided meaning to man’s world and man’s place in it. Through religious beliefs the people of Kenya inculcate values and shape consciences to provide stability in times of turmoil as humans encounter the uncertainties of life.
Unless we have involved God with His values and wisdom we are extremely irresponsible in seeking the best solution open to us in our human situation. As Christians and as a church we have a valuable contribution to make. We do not throw away the moral compass which gives social cohesion and teaches acceptable conduct in the community.
STEP 2: To build on what God has provided, welcome his son, Jesus Christ as our teacher, guide and brother.
All the ideas we hear from other people, especially our political leaders, should be examined carefully in the light of God’s helping guidance of the Gospel, as far as Christians are concerned and the (social) teaching of the Catholic Church as far as Catholics are concerned. It would be irresponsible not to use all the God-given gifts and wisdom which have been given to us individually and collectively. We, ourselves, are called to be the light of the world and the salt of the earth even if others do not have the same advantage. Everyone makes their own contribution fully available and must be considered. Majorities do not ensure the best laws. Patience, rather than haste is advisable.
STEP 3: Recognise that God creates all living beings to reach full maturity and growth, beginning with a small seed which contains all that is internally necessary to become a fully developed living being with its own identity, responsibilities and future.
Whether a tree, an animal or a human being, God creates all living beings to begin very small in size and in a state of dependence. He provides the external agent (like the mother) which will DEFEND AND PROVIDE NOURISHMENT. God has made plans involving growth, not interference or obstruction. The obligation to respect God’s plans for growth and of giving life to a new creature is serious and obvious.
STEP 4: To Recognise the right to life comes from God and belongs to the person exclusively.
No one has a right to intentionally and directly take away life. Everyone has a right to life and that right is given by God and may not be taken away except by God. There are no exceptions whatsoever to that order as stated above. Christ has stated that whatsoever we do to others is done to Him. “Whatsoever you did for one of these LEAST brethren of mine you did for me” Mt. 25 v. 40. When God has spoken, how can we “soften” His plans? The very weak need his protective words and our protective action. His love is for all, including a pregnant mother with her difficulties, but not a to the detriment of another person, a small innocent baby, which is commended to our loving care in Christ’s words “See that you do not despise one of these little ones…it is not the will of your Heavenly Father that one of these little ones be lost” Mt. 18:14. If we concentrate on making a real search for the will of God in our response we will not lose ourselves in the wrong methods
CONCLUSION
If we concentrate on making a real search for the Will of God in our response we will not lose ourselves in the wrong methods. As Christians, we know Christ continues to guide us and to be with us in spiritual matters through those who receive His Mission. The Apostles Do we believe that He is not guiding us now when we really need Him speaking through his present day Apostles in this case the Catholic Bishops of Kenya.
* C.C.Davies is the Bishop emeritus of Ngong Diocese and now lives in Asumbi in Homabay Diocese.
CISA will resume the analysis of the Constitution next Tuesday-Editor
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
Wednesday, July 14, 2010
Features of the Proposed Constitution
Positive features
• The Preamble talks of “pride in our ethnic, cultural and religious diversity” and of determination to “live in peace and unity as one indivisible sovereign nation,” the two ideas requiring that national identity and other personal and communal identities must be balanced
• Art. 1 (4) says that the sovereign power of the people is exercised at the national level and the county level, meaning that we must share state power, and not let it be monopolised at one level (and implicitly, by one tribe or a coalitional of tribes)
• Art. 6 (3) requires the state to ensure access to services throughout the country (unlike in the past when some areas were gravely neglected)
• Art. 7 makes English and Swahili official languages, but requires the state to promote and protect the diversity of language in Kenya
• Art. 8 declares that there is no state religion, and by implications that all religions must be treated equally
• Among the national values and principles of governance are patriotism, national unity, sharing of power, inclusion, social justice, equality, non-discrimination and protection of the marginalised, all of which aim at fairness and national integration (Art. 10)
• Art. 12 (1) assures all Kenya citizens equal “rights, privileges and benefits” (but Chapter 3 provides for various categories of citizenship with differing rights)
• Chapter 4 (“The Bill of Rights”) has a number of provisions to ensure equal rights to all and affirmative action for groups who have been disadvantaged in the past (set out in bullet points immediately below); the underlying theme is human dignity (see the section on “Human Rights”)
• Art. 21 requires the state to address the needs of, among others, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities
• Art. 27 guarantees equality and freedom from discrimination (direct or indirect discrimination is prohibited on any ground including race, ethnic origin, colour, religion, conscience, belief, culture or language); affirmative action must be taken to redress past disadvantages due to discrimination (see also Art. 56)
• Art. 33 (2) (c) and (d) makes it clear that freedom of speech does not cover “hate speech” or advocacy of ethnic hatred
• Art. 44 protects the rights of minorities to the use of their language and the exercise of their culture (and thus protects diversity); Art. 45 upholds marriages and personal law under a variety of religious or customary systems; and Art. 56 requires affirmative action for minorities and marginalised groups in respect of participation in state affairs, access to education, economy and employment, basic needs, and their culture
• Chapter 6 (on land) while not directly addressed to minority rights, will vest trust land directly in the communities whose life style is tied to forests or grazing or hunting-and-gathering (Art. 63(2) (d))
• Art. 91 specifies that political parties must have a “national character” (presumably meaning that they must have members from all over the country and in their governing bodies), must uphold national unity, cannot be based on bases of religion, language, race, sex or region, and must not advocate hatred on any of these grounds
• Art. 100 requires Parliament to make laws to promote the legislative representation of ethnic, minority and marginalised communities
• When members of Parliament are to be elected through party lists (this mainly affects gender in the Senate) those lists must reflect the diversity of Kenya (Art. 90)
• Art. 130 (2) requires that the national executive (that is, the President, Vice-President and the Cabinet) must reflect the ethnic and regional diversity of the people (although it is not clear how this would be enforced; perhaps by Parliament as it has to approve presidential nominations of cabinet secretaries (that is, ministers) (Art. 152 (2); see section on Parliament
• Art. 170 provides for Kadhi courts to apply Muslim law - only on matters of personal laws; and although it has upset some Christian clergy, it seems compatible with the value of respect for diversity
• Art. 232 on the civil service requires the representation of Kenya’s diverse communities in the service
• Article 131 says that the President has a special responsibility to promote respect for Kenya’s regional and ethnic diversity.
Worrying Features
• A majoritarian system of voting (such as is retained for Kenya with mostly single member constituencies) disadvantages minorities. There is a requirement that a law is passed to promote the representation of minorities and marginalised groups. This has to be done within five years (Article 100 and Schedule 5) - but a proportional system of representation (PR) which is better for ensuring the representation of minorities and women will not be possible
• The system of presidency which does not provide effective power sharing at the national level; and so may continue ethnic hegemony and exclusion of many; and continue ethnically based politics. Most seriously, even before people understand how the new system and its limits on presidential power will work, the focus on this one office may stimulate violence.
Summing up
The Proposed Constitution provides a good framework for protection of minorities, social justice, and national integration, but whether Kenya can move from ethnic politics and conflicts to the politics based on policies regarding land, economy, environment, education, health, and so on, depends significantly on the attitudes of politicians. It may not, by itself, produce our Mandela or even our Obama!
*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.
• The Preamble talks of “pride in our ethnic, cultural and religious diversity” and of determination to “live in peace and unity as one indivisible sovereign nation,” the two ideas requiring that national identity and other personal and communal identities must be balanced
• Art. 1 (4) says that the sovereign power of the people is exercised at the national level and the county level, meaning that we must share state power, and not let it be monopolised at one level (and implicitly, by one tribe or a coalitional of tribes)
• Art. 6 (3) requires the state to ensure access to services throughout the country (unlike in the past when some areas were gravely neglected)
• Art. 7 makes English and Swahili official languages, but requires the state to promote and protect the diversity of language in Kenya
• Art. 8 declares that there is no state religion, and by implications that all religions must be treated equally
• Among the national values and principles of governance are patriotism, national unity, sharing of power, inclusion, social justice, equality, non-discrimination and protection of the marginalised, all of which aim at fairness and national integration (Art. 10)
• Art. 12 (1) assures all Kenya citizens equal “rights, privileges and benefits” (but Chapter 3 provides for various categories of citizenship with differing rights)
• Chapter 4 (“The Bill of Rights”) has a number of provisions to ensure equal rights to all and affirmative action for groups who have been disadvantaged in the past (set out in bullet points immediately below); the underlying theme is human dignity (see the section on “Human Rights”)
• Art. 21 requires the state to address the needs of, among others, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities
• Art. 27 guarantees equality and freedom from discrimination (direct or indirect discrimination is prohibited on any ground including race, ethnic origin, colour, religion, conscience, belief, culture or language); affirmative action must be taken to redress past disadvantages due to discrimination (see also Art. 56)
• Art. 33 (2) (c) and (d) makes it clear that freedom of speech does not cover “hate speech” or advocacy of ethnic hatred
• Art. 44 protects the rights of minorities to the use of their language and the exercise of their culture (and thus protects diversity); Art. 45 upholds marriages and personal law under a variety of religious or customary systems; and Art. 56 requires affirmative action for minorities and marginalised groups in respect of participation in state affairs, access to education, economy and employment, basic needs, and their culture
• Chapter 6 (on land) while not directly addressed to minority rights, will vest trust land directly in the communities whose life style is tied to forests or grazing or hunting-and-gathering (Art. 63(2) (d))
• Art. 91 specifies that political parties must have a “national character” (presumably meaning that they must have members from all over the country and in their governing bodies), must uphold national unity, cannot be based on bases of religion, language, race, sex or region, and must not advocate hatred on any of these grounds
• Art. 100 requires Parliament to make laws to promote the legislative representation of ethnic, minority and marginalised communities
• When members of Parliament are to be elected through party lists (this mainly affects gender in the Senate) those lists must reflect the diversity of Kenya (Art. 90)
• Art. 130 (2) requires that the national executive (that is, the President, Vice-President and the Cabinet) must reflect the ethnic and regional diversity of the people (although it is not clear how this would be enforced; perhaps by Parliament as it has to approve presidential nominations of cabinet secretaries (that is, ministers) (Art. 152 (2); see section on Parliament
• Art. 170 provides for Kadhi courts to apply Muslim law - only on matters of personal laws; and although it has upset some Christian clergy, it seems compatible with the value of respect for diversity
• Art. 232 on the civil service requires the representation of Kenya’s diverse communities in the service
• Article 131 says that the President has a special responsibility to promote respect for Kenya’s regional and ethnic diversity.
Worrying Features
• A majoritarian system of voting (such as is retained for Kenya with mostly single member constituencies) disadvantages minorities. There is a requirement that a law is passed to promote the representation of minorities and marginalised groups. This has to be done within five years (Article 100 and Schedule 5) - but a proportional system of representation (PR) which is better for ensuring the representation of minorities and women will not be possible
• The system of presidency which does not provide effective power sharing at the national level; and so may continue ethnic hegemony and exclusion of many; and continue ethnically based politics. Most seriously, even before people understand how the new system and its limits on presidential power will work, the focus on this one office may stimulate violence.
Summing up
The Proposed Constitution provides a good framework for protection of minorities, social justice, and national integration, but whether Kenya can move from ethnic politics and conflicts to the politics based on policies regarding land, economy, environment, education, health, and so on, depends significantly on the attitudes of politicians. It may not, by itself, produce our Mandela or even our Obama!
*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.
Citizenship
*The analysis of the proposed Constitution continues- Editor
A country is its citizens. Citizens have certain rights and privileges in any country that non-citizens do not have. In most countries only a citizen can vote, and usually only a citizen can be an MP, or hold certain posts (for example many countries would not permit a non-citizen to be an army officer). A citizen always has a right to be in their own country; other people have to get special permissions such as visas and work permits.
Citizens also have obligations over and above those they share with other residents (such as paying taxes). In some countries citizens have an obligation to serve in the national service, and are liable to be called to join or fight with the armed forces..
Although the general principle is that all citizens are equal, many Kenyans have been excluded from full citizenship. Many citizens, among them women as well as minorities, complained to the CKRC about discrimination. Although the Proposed Constitution has retained existing categories of citizenship, carrying differential rights, it removes some forms of discrimination, as follows:
• Both men and women can pass citizenship to their children (Art. 14(1))
• Both men and women married to Kenyan citizens may become citizens (Art. 15)(1)
• A person born outside Kenya is a citizen, provided that at least one parent is a citizen (though this could be limited by law to prevent citizenship passing from generation to generation through people who have no active connection with the country) (Art. 14)
• A citizen who becomes, or has become in the past, a citizen of another country is entitled to be a citizen of Kenya as well – and it seems that the intention is that the reverse is to be true, namely that a person who becomes a Kenyan may retain a previous nationality, but this will require a new law (Arts. 14(5), 16 and 15(4))
• A child adopted by a Kenyan is entitled to take Kenyan citizenship Art. 15(3))
• A child who is in Kenya and who seems to be less than 8 years old, but whose parents are unknown, will be assumed to be Kenyan
• All citizens are entitled to identity cards and passports (Art. (1) 12(b))
How does this differ from the current Constitution?
Under the existing Constitution children born outside Kenya only become citizens if their fathers are citizens; now having a citizen mother will be enough. Until now a man married to a Kenyan woman had no right to become a Kenyan, but a woman married to a Kenyan man did (the foreign husband would have had to apply after living in the country for some years, in no different position from any person not married to a citizen). Now a wife will have to wait longer to become a citizen, but both men and women married to Kenyans will be in the same position as far as becoming citizens is concerned.
At present the constitution prohibits any person from holding Kenyan citizenship and that of another country (except for children, who can hold dual citizenship until they are 21 and then must decide).
It will now be harder for foreigners living in Kenya to become citizens in the sense they will have to wait longer (7 years’ continuous residence instead of 4 years in the preceding 7 years).
The existing Constitution says nothing about adopted children or children whose parents are unknown.
The provision about a right to ID cards and passports can be used to prevent officials punishing unpopular people by withholding a passport.
Why dual nationality?
People sometimes feel that one ought to be – or even can be - loyal to one country only. A clear majority of those who expressed a view to the CKRC felt that it should be possible to have dual citizenship, though others felt that a person ought to make a choice. In the modern world many people spend part of their lives in one country and part in another. That is good not just for them but for international understanding and international commerce. Dual nationality means that they can more easily travel between the countries in which they have an interest. The arguments in favour of dual citizenship include that such a person might actually be more inclined to retain a connection with Kenya if it is possible to retain citizenship.
Another issue in Kenya relates to pastoral peoples; some of these groups move across national boundaries with their herds. This may make it very difficult to obtain citizenship (because there is a tendency for officials to suggest that they ‘belong’ on the other side whereas the truth is that they belong on both sides of the border).
In reality many people even now do have two or more passports. Not to permit this to be done lawfully is an invitation to deception and corruption.
What do other countries do? The UK has always allowed dual nationality. Until recently the USA was firmly against it, but in recent years the law has been relaxed. Canada has recognised dual nationality since 1977. There is a definite trend towards recognizing dual nationality, though most African countries have not followed the trend.
Comments
Citizenship provisions in the Proposed Constitution are much better than under the current constitution. There are still some distinctions between citizens, for example, only a citizen by birth has a constitutional right to keep their citizenship while acquiring another nationality. And only citizens by birth may hold certain offices.
Ethnicity, minorities and national integration
Prevalence of ethnicity in public life is major political and social problem facing Kenya. Our politics have become largely the politics of ethnicity. Politicians find that an easy way to build support is by playing on ethnicity, by stirring up ethnic loyalties on one hand, and ethnic animosities on the other. Sometimes they incite people against other tribes, even to violence, as is well demonstrated by the Waki Commission. They promise their tribe development and other benefits if they have their vote. They claim political monopoly over “their tribal area” and insist that no outside politician can enter control over it without their permission. Tribe is set against tribe, no matter that politicians are able to change their own strategic tribal alliances routinely. The politician’s principal interest is to grab state power, for only in this way can he or she accumulates wealth and influence. Through politics of stealing public resources, and patronage for cronies, successive presidents and their associates have corrupted public morals, and given the impression that the advancement of a tribe is through the capture of presidency (though the only beneficiaries are president’s relatives and cronies). Many people respond to ethnic appeals because of their vulnerability, brought about by the market and the state, which have fundamentally disrupted the rhythm of their traditional life, and exposed them to the vagaries of mechanisms they neither control nor understand. Negative ethnic feelings then spill over into other spheres of lives.
The country has paid a heavy price for the politicisation of ethnicity. Tribal politics are based on patronage which is one cause of corruption, whether in the form of money transfers, grants of land, contracts, evasion of bureaucratic procedures, or jobs for relatives and friends. It has led to the abuse of the electoral process, bussing in voters from outside, using state agencies to rig elections or declare fraudulent “results”. The obsession with ethnicity means that it becomes the sole criterion for judging people. Very little attention is paid to social, economic and environment policies (other than on how they impact on one’s tribe). Some people are all too eager to defend their ethnic “leaders” against even well founded allegations of corruption or violence; and in this way the whole question of illegality is transformed into an issue of “harassment or guilt of tribe”, and weakens the whole concept of guilt and accountability.
Ethnic politics have influenced people’s attitude to state institutions: either they are “ours” or they are the “enemy”. The lack of trust in government is pervasive. Many communities, often justifiably, feel they have been deliberately marginalised, denied opportunities of education, ignored in recruitment to public service jobs, discriminated when they tender for government contracts, their land illegally taken away from them. The notion of equal citizenship, the foundation of justice and unity in any state, is greatly debased. All these unequal policies and practices lead to ethnic tensions and conflicts. As we saw in the 2007 elections and the subsequent election violence, they have become a major threat to human security, and ultimately to national unity.
Increasingly, various groups related to politicians are examining the Proposed Constitution from the ethnic angle, particularly the provisions on the executive, devolution, electoral system, and land reform, ignoring the impact on the national good. Such a myopic approach threatens constitutional reform. It is very important that people have an accurate idea of what the Proposed Constitution has to contribute to this important issue.
Proposed Constitution
The Proposed Constitution is based largely on the approach developed by the CKRC to the balance between the respect for ethnic diversity and the promotion of a Kenyan identity and national unity. In a multi-ethnic state it is important that each community should feel, or be made to feel, that it is part of the wider nation and be accepted as such. It should be able to practise its culture, including religion and language. All citizens should enjoy equal rights and equal opportunities. All communities should be included in state institutions and other spheres of life. If a community has been disadvantaged in the past, (like Nubians and residents of the North East) they should be compensated. In this way a state may be able to promote social solidarity which is essential to the running of the country and effectiveness of the state. As shown below, the Proposed Constitution incorporates these features and provides a good framework for promoting justice and solidarity. But we do have reservations on major points which we state at the end of this section. Before looking at the details – what does the current constitution have to contribute?
The independence and the current constitutions
The independence constitution addressed a number of issues relating to ethnic interests, particularly the fear among racial and tribal minorities about the hegemony of larger tribes. From a highly unitary state Kenya moved to a quasi-federation state through the system of regional and county governments. A second legislative chamber, the Senate, was established. At the centre a parliamentary cabinet system that allows for a collective executive was established. The response to worries about land was to set up the system of trust land to which most customary land was converted and responsibility for management given to county councils on behalf of communities. The police were re-organised, to provide autonomy on operational questions, and to regionalise it, both directed to abuse of police by the central government.
Most of these provisions were removed or diluted by the Kenyatta government within very few years, beginning on the first anniversary of independence. The parliamentary system was replaced by the presidential system in which most executive power was vested in one person. Regional government and the Senate were abolished. The police were centralised, and their operational autonomy removed. The practices of the state became highly discriminatory on both racial and tribal basis.
The current constitution does not offer any vision of a multi-cultural Kenya. There is no preamble - which is where one might expect a vision. It has a provision to prohibit discrimination on ethnic grounds, but there are several exceptions to it. It protects some aspects of culture, particularly in relation to family laws. It has a first past the post (majoritarian) election system which works against minorities. In some respects it maintains the colonial legal basis for keeping races or tribes separate.
*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.
A country is its citizens. Citizens have certain rights and privileges in any country that non-citizens do not have. In most countries only a citizen can vote, and usually only a citizen can be an MP, or hold certain posts (for example many countries would not permit a non-citizen to be an army officer). A citizen always has a right to be in their own country; other people have to get special permissions such as visas and work permits.
Citizens also have obligations over and above those they share with other residents (such as paying taxes). In some countries citizens have an obligation to serve in the national service, and are liable to be called to join or fight with the armed forces..
Although the general principle is that all citizens are equal, many Kenyans have been excluded from full citizenship. Many citizens, among them women as well as minorities, complained to the CKRC about discrimination. Although the Proposed Constitution has retained existing categories of citizenship, carrying differential rights, it removes some forms of discrimination, as follows:
• Both men and women can pass citizenship to their children (Art. 14(1))
• Both men and women married to Kenyan citizens may become citizens (Art. 15)(1)
• A person born outside Kenya is a citizen, provided that at least one parent is a citizen (though this could be limited by law to prevent citizenship passing from generation to generation through people who have no active connection with the country) (Art. 14)
• A citizen who becomes, or has become in the past, a citizen of another country is entitled to be a citizen of Kenya as well – and it seems that the intention is that the reverse is to be true, namely that a person who becomes a Kenyan may retain a previous nationality, but this will require a new law (Arts. 14(5), 16 and 15(4))
• A child adopted by a Kenyan is entitled to take Kenyan citizenship Art. 15(3))
• A child who is in Kenya and who seems to be less than 8 years old, but whose parents are unknown, will be assumed to be Kenyan
• All citizens are entitled to identity cards and passports (Art. (1) 12(b))
How does this differ from the current Constitution?
Under the existing Constitution children born outside Kenya only become citizens if their fathers are citizens; now having a citizen mother will be enough. Until now a man married to a Kenyan woman had no right to become a Kenyan, but a woman married to a Kenyan man did (the foreign husband would have had to apply after living in the country for some years, in no different position from any person not married to a citizen). Now a wife will have to wait longer to become a citizen, but both men and women married to Kenyans will be in the same position as far as becoming citizens is concerned.
At present the constitution prohibits any person from holding Kenyan citizenship and that of another country (except for children, who can hold dual citizenship until they are 21 and then must decide).
It will now be harder for foreigners living in Kenya to become citizens in the sense they will have to wait longer (7 years’ continuous residence instead of 4 years in the preceding 7 years).
The existing Constitution says nothing about adopted children or children whose parents are unknown.
The provision about a right to ID cards and passports can be used to prevent officials punishing unpopular people by withholding a passport.
Why dual nationality?
People sometimes feel that one ought to be – or even can be - loyal to one country only. A clear majority of those who expressed a view to the CKRC felt that it should be possible to have dual citizenship, though others felt that a person ought to make a choice. In the modern world many people spend part of their lives in one country and part in another. That is good not just for them but for international understanding and international commerce. Dual nationality means that they can more easily travel between the countries in which they have an interest. The arguments in favour of dual citizenship include that such a person might actually be more inclined to retain a connection with Kenya if it is possible to retain citizenship.
Another issue in Kenya relates to pastoral peoples; some of these groups move across national boundaries with their herds. This may make it very difficult to obtain citizenship (because there is a tendency for officials to suggest that they ‘belong’ on the other side whereas the truth is that they belong on both sides of the border).
In reality many people even now do have two or more passports. Not to permit this to be done lawfully is an invitation to deception and corruption.
What do other countries do? The UK has always allowed dual nationality. Until recently the USA was firmly against it, but in recent years the law has been relaxed. Canada has recognised dual nationality since 1977. There is a definite trend towards recognizing dual nationality, though most African countries have not followed the trend.
Comments
Citizenship provisions in the Proposed Constitution are much better than under the current constitution. There are still some distinctions between citizens, for example, only a citizen by birth has a constitutional right to keep their citizenship while acquiring another nationality. And only citizens by birth may hold certain offices.
Ethnicity, minorities and national integration
Prevalence of ethnicity in public life is major political and social problem facing Kenya. Our politics have become largely the politics of ethnicity. Politicians find that an easy way to build support is by playing on ethnicity, by stirring up ethnic loyalties on one hand, and ethnic animosities on the other. Sometimes they incite people against other tribes, even to violence, as is well demonstrated by the Waki Commission. They promise their tribe development and other benefits if they have their vote. They claim political monopoly over “their tribal area” and insist that no outside politician can enter control over it without their permission. Tribe is set against tribe, no matter that politicians are able to change their own strategic tribal alliances routinely. The politician’s principal interest is to grab state power, for only in this way can he or she accumulates wealth and influence. Through politics of stealing public resources, and patronage for cronies, successive presidents and their associates have corrupted public morals, and given the impression that the advancement of a tribe is through the capture of presidency (though the only beneficiaries are president’s relatives and cronies). Many people respond to ethnic appeals because of their vulnerability, brought about by the market and the state, which have fundamentally disrupted the rhythm of their traditional life, and exposed them to the vagaries of mechanisms they neither control nor understand. Negative ethnic feelings then spill over into other spheres of lives.
The country has paid a heavy price for the politicisation of ethnicity. Tribal politics are based on patronage which is one cause of corruption, whether in the form of money transfers, grants of land, contracts, evasion of bureaucratic procedures, or jobs for relatives and friends. It has led to the abuse of the electoral process, bussing in voters from outside, using state agencies to rig elections or declare fraudulent “results”. The obsession with ethnicity means that it becomes the sole criterion for judging people. Very little attention is paid to social, economic and environment policies (other than on how they impact on one’s tribe). Some people are all too eager to defend their ethnic “leaders” against even well founded allegations of corruption or violence; and in this way the whole question of illegality is transformed into an issue of “harassment or guilt of tribe”, and weakens the whole concept of guilt and accountability.
Ethnic politics have influenced people’s attitude to state institutions: either they are “ours” or they are the “enemy”. The lack of trust in government is pervasive. Many communities, often justifiably, feel they have been deliberately marginalised, denied opportunities of education, ignored in recruitment to public service jobs, discriminated when they tender for government contracts, their land illegally taken away from them. The notion of equal citizenship, the foundation of justice and unity in any state, is greatly debased. All these unequal policies and practices lead to ethnic tensions and conflicts. As we saw in the 2007 elections and the subsequent election violence, they have become a major threat to human security, and ultimately to national unity.
Increasingly, various groups related to politicians are examining the Proposed Constitution from the ethnic angle, particularly the provisions on the executive, devolution, electoral system, and land reform, ignoring the impact on the national good. Such a myopic approach threatens constitutional reform. It is very important that people have an accurate idea of what the Proposed Constitution has to contribute to this important issue.
Proposed Constitution
The Proposed Constitution is based largely on the approach developed by the CKRC to the balance between the respect for ethnic diversity and the promotion of a Kenyan identity and national unity. In a multi-ethnic state it is important that each community should feel, or be made to feel, that it is part of the wider nation and be accepted as such. It should be able to practise its culture, including religion and language. All citizens should enjoy equal rights and equal opportunities. All communities should be included in state institutions and other spheres of life. If a community has been disadvantaged in the past, (like Nubians and residents of the North East) they should be compensated. In this way a state may be able to promote social solidarity which is essential to the running of the country and effectiveness of the state. As shown below, the Proposed Constitution incorporates these features and provides a good framework for promoting justice and solidarity. But we do have reservations on major points which we state at the end of this section. Before looking at the details – what does the current constitution have to contribute?
The independence and the current constitutions
The independence constitution addressed a number of issues relating to ethnic interests, particularly the fear among racial and tribal minorities about the hegemony of larger tribes. From a highly unitary state Kenya moved to a quasi-federation state through the system of regional and county governments. A second legislative chamber, the Senate, was established. At the centre a parliamentary cabinet system that allows for a collective executive was established. The response to worries about land was to set up the system of trust land to which most customary land was converted and responsibility for management given to county councils on behalf of communities. The police were re-organised, to provide autonomy on operational questions, and to regionalise it, both directed to abuse of police by the central government.
Most of these provisions were removed or diluted by the Kenyatta government within very few years, beginning on the first anniversary of independence. The parliamentary system was replaced by the presidential system in which most executive power was vested in one person. Regional government and the Senate were abolished. The police were centralised, and their operational autonomy removed. The practices of the state became highly discriminatory on both racial and tribal basis.
The current constitution does not offer any vision of a multi-cultural Kenya. There is no preamble - which is where one might expect a vision. It has a provision to prohibit discrimination on ethnic grounds, but there are several exceptions to it. It protects some aspects of culture, particularly in relation to family laws. It has a first past the post (majoritarian) election system which works against minorities. In some respects it maintains the colonial legal basis for keeping races or tribes separate.
*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.
Wednesday, July 7, 2010
What will a “Yes” vote mean for Kenya and Kenyans?
*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.
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.
A Brief Constitutional History
*We bring you part three of the series of discussion on the constitution-Editor
On becoming independent in December 1963, Kenya got a new constitution, negotiated between Kenyan political parties and the British government. It established a constitutional order that was very different from the colonial system. It provided for a democratic and accountable system of government. The national government was based on the principles of the parliamentary system, with executive powers to be exercised a cabinet headed by a prime minister (normally the leader of the largest party in the legislature). The head of state was the governor-general with limited but significant powers, to maintain the principles of parliamentary government.
There were also seven regions, with their own executive and legislature which had authority over a number of matters, including land, local taxation, police, law and order, and other issues of local importance. The powers and institutions of regions were protected by the constitution. The reason for regional governments was to bring power closer to the people and safeguard the country’s ethnic diversity, particularly the rights of minorities. A significant element of devolution was the protection of the land rights of communities. There was a complex system of land ownership and regulation, in which county councils had special responsibilities in relation to community land designated as trust land.
In order to protect this form of devolution, a second chamber of the national legislature, the Senate, was established, with one representative from each of the 41 districts which existed then. It had very significant powers, including a key role in the process for the amendment of the Constitution. For the amendment of some provisions, the majority required in the Senate was as high as 90%.
The Constitution provided for a public service which was largely independent of the executive, managed by the Public Service Commission. It also included important safeguards for the independence of the judiciary, with a Judicial Service Commission responsible for appointments and dismissal of judges. Appeals went to the East African Court of Appeals, over which no national government had control, and finally to the Privy Council in London - completely independent of the Kenya government. The independence of the auditor general and the attorney general was also guaranteed. More importantly, the operational autonomy of the police was established, prohibiting political directives to the police.
The Constitution contained a Bill of Rights which protected the essential political and civil rights of citizens. However, it allowed a large number of restrictions on these rights; and it did not include socio-economic rights. Otherwise there was no statement of national values or principles of state policy (it did not even have a preamble!).
Fundamental amendments
The independence constitution did not survive for long. Kenyatta’s government promoted fundamental changes to it on the first anniversary of independence. In a short time, his government changed the system of government to presidential, combining the offices and powers of the governor-general and prime minister in the president, creating a powerful new post, which in effect weakened the legislature. The second major change was the abolition of regional governments leading to a highly centralised government at the national level. The Senate was also abolished, reducing checks on the administration. The land chapter was reduced to a few provisions on trust land, giving the national government increased control over land matters. Both the civil service and the police were brought under executive control. Appeals to the Privy Council were abolished, and the East African Court of Appeals ceased to exist with the breakup of the East African Community.
The dismantling of the democratic and accountability mechanisms continued under President Moi, who reduced Kenya to a one party state, and abolished the security of offices of the auditor-general, attorney-general and judges, so that the president could dismiss them at will. Many amendments under both presidents were rushed and often all stages were disposed of in one day. Fundamental rights were systematically violated, and courts provided no effective protection. In these ways the careful sharing and balancing of power and the safeguards of citizen’s rights and freedoms were done away with, giving rise to destructive ethnic politics and sowing seeds of disunity.
In the 1990s, with the end of the cold war and the loss of interest of the West in supporting Moi’s regime, some of these amendments were repealed, and some laws which had been used to harass and penalise the regime’s political opponents, such as detention without trial, were amended or repealed. But by now people had lost respect for the constitution and confidence in the political system. Few public institutions enjoyed legitimacy and most lost the ability to resolve differences among the political parties or the people or develop consensus. There was little accountability of the president, ministers or senior civil servants. Rights continued to be violated, and corruption, which had started at the very beginning of Kenyatta’s rule, continued to flourish.
Consequences
Corruption; poverty and disparities of wealth and opportunities; exclusion and intensification of ethnic discrimination and tensions; violation of human rights; land related problems; violence in and militarisation of politics; lack of human security; unchecked powers of security forces; all these were the consequences of the distortion of the constitution.
These, and other negative social and economic developments, impoverished numerous families and communities, and led to huge disparities between them and few rich families, were attributed by people and commentators alike to the absence of accountability and the rule of law.
More specifically, the major consequences were:
• The centralisation of power in the hands of one person, the president. This resulted in lack of democracy and accountability, patronage politics, ethnicisation of politics (as each community focussed on this one important political prize).
• The lack of accountability of the government and the near impossibility of holding the president to lawful acts and procedures led to massive corruption, with impunity for him and his cronies. The corruption drained away billions of shillings which belonged to the state on behalf of the people and is a primary cause of the poverty, under which the majority of Kenyans live.
• The concentration of power in the president enabled him and the attorney general to direct the judiciary as to how to decide cases in which the president or his friends had an interest. The Attorney-General’s powers of prosecution, although meant to be exercised independently, were in practice used to further the interest of the president and his friends.
• There was massive violation of the rights of Kenyans for which there was no redress judicially or administratively.
• The repeal of the 1963 constitution provisions on regional governments and the gradual removal of the administrative and financial powers of local government weakened democracy and participation at district and sub-district levels. Operating through the Provincial Administration, the president acquired control over much of the country in matters that properly belonged to provinces and districts.
• The control of land by the government and county councils, and in particular the president’s power to grant land without any legal process or consultation, led to massive abuse, illegal transfers of land, dispossession of many of their land, and began the division between rich and poor Kenyans.
• There are no provisions for parliamentary civilian control over the security forces which have grown in numbers and in the quantity and quality of weaponry. The independence of the police guaranteed in 1963 was removed. The result was that the president and his government had complete control of the armed forces, and often used (and use) them to repress the people. Consequently the public has lost confidence in the impartiality and competence of the armed forces.
• All these developments produced distrust of government, and distrust and conflict among ethnic communities, as politicians played upon ethnic fears and promoted ethnic animosities. This has greatly weakened national solidarity and unity, threatening the very integrity of the country.
People struggled for constitutional reform because they considered that only in this way could the negative consequences of the amendments under Kenyatta and Moi could be removed.
Constitutional Reform Agenda
The struggle for constitutional reform led to a consensus between Moi’s government and other political parties and civil society (including on major religions) on the process and the agenda for reform which was given effect to in the CKRC Act of 2000. The reform agenda there was repeated in the 2008 Constitution Review Act. All organs of review, then and now, are bound by the constitutional principles that make up the agenda.
The important goals of review are:
• Peace, national unity and integrity of the country
• respect for ethnic and regional diversity, and inclusion of all communities in institutions of the state
• The well-being of the people and the basic needs of all
• democracy, good governance and the Rule of Law (protected in part by the separation of powers and checks and balances)
• Devolution of powers to facilitate the participation of people in the governance of the country (and presumably to provide for sharing of power, and effective government at local levels)
• Full participation of the people in the management of public affairs
• Human rights (especially equality and non-discrimination), as essential to economic, social, religious, political and cultural development
• Gender equity, giving women equal rights to men, and fair representation in state institutions
• Independent institutions that review the abuse of power and violation of rights, and provide redress. Independent institutions also for politically sensitive tasks, like managing the electoral process Competence, accountability, efficiency, discipline and independence of the judiciary.
The 2000 and 2008 processes both emphasise the importance of transparency, and participation of and accountability to the people. They require the organs of review to reflect the people’s wishes in the constitution. They also emphasise decision making by consensus (in order to resolve national differences and to create solidarity). Only if consensus is not possible should decisions be made by a two-thirds majority. Both the CKRC and the Committee of Experts followed these requirements faithfully. In both cases the people have expressed their views freely and they have been analysed with care. We are now at the final stage of a long drawn out process. That stage is the referendum to be conducted on 4th August 2010.
*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.
On becoming independent in December 1963, Kenya got a new constitution, negotiated between Kenyan political parties and the British government. It established a constitutional order that was very different from the colonial system. It provided for a democratic and accountable system of government. The national government was based on the principles of the parliamentary system, with executive powers to be exercised a cabinet headed by a prime minister (normally the leader of the largest party in the legislature). The head of state was the governor-general with limited but significant powers, to maintain the principles of parliamentary government.
There were also seven regions, with their own executive and legislature which had authority over a number of matters, including land, local taxation, police, law and order, and other issues of local importance. The powers and institutions of regions were protected by the constitution. The reason for regional governments was to bring power closer to the people and safeguard the country’s ethnic diversity, particularly the rights of minorities. A significant element of devolution was the protection of the land rights of communities. There was a complex system of land ownership and regulation, in which county councils had special responsibilities in relation to community land designated as trust land.
In order to protect this form of devolution, a second chamber of the national legislature, the Senate, was established, with one representative from each of the 41 districts which existed then. It had very significant powers, including a key role in the process for the amendment of the Constitution. For the amendment of some provisions, the majority required in the Senate was as high as 90%.
The Constitution provided for a public service which was largely independent of the executive, managed by the Public Service Commission. It also included important safeguards for the independence of the judiciary, with a Judicial Service Commission responsible for appointments and dismissal of judges. Appeals went to the East African Court of Appeals, over which no national government had control, and finally to the Privy Council in London - completely independent of the Kenya government. The independence of the auditor general and the attorney general was also guaranteed. More importantly, the operational autonomy of the police was established, prohibiting political directives to the police.
The Constitution contained a Bill of Rights which protected the essential political and civil rights of citizens. However, it allowed a large number of restrictions on these rights; and it did not include socio-economic rights. Otherwise there was no statement of national values or principles of state policy (it did not even have a preamble!).
Fundamental amendments
The independence constitution did not survive for long. Kenyatta’s government promoted fundamental changes to it on the first anniversary of independence. In a short time, his government changed the system of government to presidential, combining the offices and powers of the governor-general and prime minister in the president, creating a powerful new post, which in effect weakened the legislature. The second major change was the abolition of regional governments leading to a highly centralised government at the national level. The Senate was also abolished, reducing checks on the administration. The land chapter was reduced to a few provisions on trust land, giving the national government increased control over land matters. Both the civil service and the police were brought under executive control. Appeals to the Privy Council were abolished, and the East African Court of Appeals ceased to exist with the breakup of the East African Community.
The dismantling of the democratic and accountability mechanisms continued under President Moi, who reduced Kenya to a one party state, and abolished the security of offices of the auditor-general, attorney-general and judges, so that the president could dismiss them at will. Many amendments under both presidents were rushed and often all stages were disposed of in one day. Fundamental rights were systematically violated, and courts provided no effective protection. In these ways the careful sharing and balancing of power and the safeguards of citizen’s rights and freedoms were done away with, giving rise to destructive ethnic politics and sowing seeds of disunity.
In the 1990s, with the end of the cold war and the loss of interest of the West in supporting Moi’s regime, some of these amendments were repealed, and some laws which had been used to harass and penalise the regime’s political opponents, such as detention without trial, were amended or repealed. But by now people had lost respect for the constitution and confidence in the political system. Few public institutions enjoyed legitimacy and most lost the ability to resolve differences among the political parties or the people or develop consensus. There was little accountability of the president, ministers or senior civil servants. Rights continued to be violated, and corruption, which had started at the very beginning of Kenyatta’s rule, continued to flourish.
Consequences
Corruption; poverty and disparities of wealth and opportunities; exclusion and intensification of ethnic discrimination and tensions; violation of human rights; land related problems; violence in and militarisation of politics; lack of human security; unchecked powers of security forces; all these were the consequences of the distortion of the constitution.
These, and other negative social and economic developments, impoverished numerous families and communities, and led to huge disparities between them and few rich families, were attributed by people and commentators alike to the absence of accountability and the rule of law.
More specifically, the major consequences were:
• The centralisation of power in the hands of one person, the president. This resulted in lack of democracy and accountability, patronage politics, ethnicisation of politics (as each community focussed on this one important political prize).
• The lack of accountability of the government and the near impossibility of holding the president to lawful acts and procedures led to massive corruption, with impunity for him and his cronies. The corruption drained away billions of shillings which belonged to the state on behalf of the people and is a primary cause of the poverty, under which the majority of Kenyans live.
• The concentration of power in the president enabled him and the attorney general to direct the judiciary as to how to decide cases in which the president or his friends had an interest. The Attorney-General’s powers of prosecution, although meant to be exercised independently, were in practice used to further the interest of the president and his friends.
• There was massive violation of the rights of Kenyans for which there was no redress judicially or administratively.
• The repeal of the 1963 constitution provisions on regional governments and the gradual removal of the administrative and financial powers of local government weakened democracy and participation at district and sub-district levels. Operating through the Provincial Administration, the president acquired control over much of the country in matters that properly belonged to provinces and districts.
• The control of land by the government and county councils, and in particular the president’s power to grant land without any legal process or consultation, led to massive abuse, illegal transfers of land, dispossession of many of their land, and began the division between rich and poor Kenyans.
• There are no provisions for parliamentary civilian control over the security forces which have grown in numbers and in the quantity and quality of weaponry. The independence of the police guaranteed in 1963 was removed. The result was that the president and his government had complete control of the armed forces, and often used (and use) them to repress the people. Consequently the public has lost confidence in the impartiality and competence of the armed forces.
• All these developments produced distrust of government, and distrust and conflict among ethnic communities, as politicians played upon ethnic fears and promoted ethnic animosities. This has greatly weakened national solidarity and unity, threatening the very integrity of the country.
People struggled for constitutional reform because they considered that only in this way could the negative consequences of the amendments under Kenyatta and Moi could be removed.
Constitutional Reform Agenda
The struggle for constitutional reform led to a consensus between Moi’s government and other political parties and civil society (including on major religions) on the process and the agenda for reform which was given effect to in the CKRC Act of 2000. The reform agenda there was repeated in the 2008 Constitution Review Act. All organs of review, then and now, are bound by the constitutional principles that make up the agenda.
The important goals of review are:
• Peace, national unity and integrity of the country
• respect for ethnic and regional diversity, and inclusion of all communities in institutions of the state
• The well-being of the people and the basic needs of all
• democracy, good governance and the Rule of Law (protected in part by the separation of powers and checks and balances)
• Devolution of powers to facilitate the participation of people in the governance of the country (and presumably to provide for sharing of power, and effective government at local levels)
• Full participation of the people in the management of public affairs
• Human rights (especially equality and non-discrimination), as essential to economic, social, religious, political and cultural development
• Gender equity, giving women equal rights to men, and fair representation in state institutions
• Independent institutions that review the abuse of power and violation of rights, and provide redress. Independent institutions also for politically sensitive tasks, like managing the electoral process Competence, accountability, efficiency, discipline and independence of the judiciary.
The 2000 and 2008 processes both emphasise the importance of transparency, and participation of and accountability to the people. They require the organs of review to reflect the people’s wishes in the constitution. They also emphasise decision making by consensus (in order to resolve national differences and to create solidarity). Only if consensus is not possible should decisions be made by a two-thirds majority. Both the CKRC and the Committee of Experts followed these requirements faithfully. In both cases the people have expressed their views freely and they have been analysed with care. We are now at the final stage of a long drawn out process. That stage is the referendum to be conducted on 4th August 2010.
*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.
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