Constitutionalism and the challenge

Constitutionalism And The Challenge Of Development And Statehood Paradigms In Post Colonial Kenya.

Introduction

In January and February 2008, Kenya was engulfed in ethnic violence stemming from a disputed presidential election. More than 1000 people lost their lives and more than 350,000 were displaced. This singular occurrence, in the context of inter alia similar continuing disputes in Zimbabwe, Uganda, Somalia, Sudan, Ethiopia and Eritrea, Nigeria, Ivory Coast and the Democratic Republic of Congo, has raised anew several fundamental questions about the fragility and feasibility of the African post colonial state and the obstacles that lie in the path of constitutionalism in multi ethnic communities.

The 2008 poll violence was not an isolated unwelcome occurrence. Since Kenya gained her independence from Britain in 1963, the challenges to her statehood have been legion. Starting off at independence with a GDP comparable to the East Asian Tiger economies then, the country now has 60% of her population living below the poverty line.

Unemployment stands at around 40%. The gap between the rich and poor is unacceptably wide earning Kenya the dubious reputation as one of the most unequal societies in the world. Corruption at institutional and individual level has become a way of life to the extent that an informal ‘taxation' regime has emerged and actively competes against formal state structures. Ethnicity in public and private affairs has since independence been practiced without hindrance with the result that meritocracy has been sidelined as a parameter of any kind. Insecurity is widespread in both urban and rural areas. With the country seemingly unable to meet internationally accepted ratios of police to civilians, communities in many parts of the country have resorted to self help measures ranging from community policing, vigilantes, lynch mobs and extortionist youth mobs. And then there is the political class that seems to have lost touch with reality!

It is only remarkable that despite four decades of stagnated economic development and widespread disenchantment with the status quo Kenya has avoided the civil wars that are such a common feature of the African continent. This may be attributed partly to successive civilian administrations that ascended t power in constitutionally mandated fashion. This cannot be taken for granted and this project will advance the argument that the panacea for this bleak state of affairs and the future of the Kenyan state as a viable and entity lies in entrenching a culture of constitutionalism.

Kenya is suggestive of the lost opportunities and dangers of modern state building founded on a Westminster liberal constitution template and of the importance of seizing opportunities for meaningful change when they arise. Sadly, the political class has singularly failed to provide leadership that could lead to prosperous and cohesive state. I could go on ad infinitum on the ills afflicting the Kenyan state, but that is not my intention. These are the problems of Kenya as I view them and the inability of the state to find a constitutional panacea for them seems to sadly replicate a familiar template of many states north of the Limpopo.

Problem Statement And Substanciation

This proposal seeks to research the post-election violence in Kenya in 2008 through a constitutionalism vacuity prism. The foregoing facts were only a by-product and symptoms of an underlying serious problem of lack of a constitutionalism culture that has engendered politics of ethno-regional exclusion and negative competition. Politicians use land conflicts, identity politics, social inequality and regional marginalization to manipulate and incite ethno-regional sentiments for political gains in a political power game.

A bad constitution is was to blame for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.

Hypothesis

The project is based on the concept that constitutions in Africa are the product of a colonial legacy, which explains why they lacked ownership, legitimacy and relevance to the African context. It's assumption is that the dysfunction of the states in Africa could be corrected if African countries could have ownership of their institutions and if those institutions were to be relevant to the conditions in Africa and the aspirations of the African people.

My conscious view is that the legacy of the colonial State needs to be overcome if an African renaissance is to be realized and that entails looking for alternative democratic and truly African model of constitutional democracy. Only through a new kind of constitutionalism can emerging democracies develop internal processes relevant to the actual struggles taking place in the society. Redefining constitutionalism so as to ensure redistribution of political power and ensure ethnic and regional inclusiveness as well as to mould civic values or the behaviour of key political actors would help to generate a state that is capable of sound social policies and fair and honest administration.

The Western liberal democracy notion of constitutionalism is inadequate for this task since it mostly concerns itself with the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. Its perspective lacks clear solutions on inculcation of democratic constitutional values that are so much wanting in African societies.

Objectives Of The Study

The western liberal constitutionalism does not seem to fit in well with many African states. The consequence has been manifest in the archetypal unstable African state.

The objective of this project is to interrogate the dynamics of constitutionalism in Kenya in an investigative and policy oriented manner so as to integrate the normative African context and the liberal constitutionalism model in a comprehensive framework that works better.

Research Questions

1. The Kenya constitution is a derivation of the familiar Westminster model bequeathed to many former British colonies. Constitutionalization is widely perceived as a power-diffusing measure often associated with limiting government action and protecting basic rights. As a result, broad accounts of its political origins tend to portray the adoption of constitutions as a reflection of progressive social or political change, or simply as the result of societies' genuine commitment to notions of democracy, separation of powers, and human rights. Unfortunately, however, most of the assumptions regarding the power-diffusing, predominantly benevolent and progressive origins of constitutionalization remain mostly untested and abstract. . It is proposed to thoroughly interrogate and test the rationale and utility of this model

2. Deconstructing the Westminster model? Having regard to the Charter of the African Union and the East African Community, can it argued that there is an emerging compensatory constitutionalism where a set of compatible supra‐national and regional institutions that fulfill functions hitherto fulfilled by national constitutions and that deconstitutionalisation at the national level has been compensated for? It is proposed to test this hypothesis by distinguishing between procedural and substantive constitutionalism at national and supranational levels.

3. Which precedes the other? Judicial independence and the rule of law are largely seen as essential features of modern democracy and constitutionalism. Drawing on the growing comparative literature on courts, it is proposed unpack this claim by focusing on two broad questions: How has the type of political regime affected judicial independence? Are independent courts, in fact, always essential for establishing the rule of law? By also considering the puzzle of institutional instability that marks courts in much of the developing world, it is proposed to identify several reasons why democracy may not always prove sufficient for constructing either.

4. Economic development has been the most persistent of challenges facing the Kenyan state. In Kenya and the region the argument has been advanced that authoritarianism is an essential component for economic success akin to East Asia's "economic miracle." Those who advance this thesis argue that Western style democracy and human rights are dispensable and sometimes may prove positively harmful to the development effort. The alleged price of political pluralism and human rights has been said to be the destruction of the African social fabric and the resultant political and economic chaos. It is proposed to investigate the veracity of this claim while investigating constitutionalism as a possible venue for economic development. The notion of constitutionalism employed in this proposal will look beyond mere formal institutions to consider the dynamic processes of representation and empowerment attached to human rights institutions. In considering both the fundamentals of constitutionalism as well as the indigenization of constitutional practices, this analysis intends to offer a venue for addressing relativist arguments without undermining universal commitments.

Significance Of Research

The changes in conceptions of constitutionalism have profound effects on our thinking of law and it's meaning in the society. This is due to the fact that modern societies are characteristically based on principles of democracy, rule of law and human rights

established in the written constitutions. But it is also due to the significant cultural role the constitutionalism has played after the end of the end of the Cold War.

From the overthrow of Mengistu in Ethiopia, the demise of apartheid in South Africa to the return to civilian rule in Nigeria. These changes resulted in a large scale constitutionalization of African states. Neither the impacts of constitutionalism to the legal orders in different contexts nor the impacts the changes have in terms of the notion of constitutionalism have been left un-noticed by the academic community. However, all the different challenges imposed by the pluralist notion of constitutionalism are just beginning to get appropriate attention. This project if successful should be a worthy contribution to that.

What has become clear by now is that constitutional concepts structured for the purposes of nation-states are not straightforwardly applicable for the purposes of trans-national and pluralistic world where the constitution must operate. Neither does the existence of instrumental constitutional concepts without a value based constitutional culture in society address the numerous challenges. What happens after this acknowledgement is very much un-clear. Yet the questions regarding the state of constitutionalism and its effects in the every-day life, democracy and rule of law are unquestionable. This proposal should contribute to the knowledge bank in this era of ever increasing regional organizations.

Last but not least is the question of viability of the African nation state and the challenges it faces. Considering that many African countries are still in the process of nation-building, it is absolutely critical that the political and constitutional framework should be constructed in a manner which balances unity with national diversity and which fosters a commonality to which all groups can confidently identify. When national groups find themselves threatened with minority status, excluded, or marginalised they would rather rebel against the national framework and exit if they have the chance to engage in armed struggle. This has always posed a serious challenge to the legitimacy of the state, and has led to wars in several African countries. The main point is that while constitutional democracy, broadly defined in terms of normative ideals or principles, is universally valued, it needs to be made relevant to the African reality and normative context to make it more home-grown and reflective of national diversities. This is the biggest challenge facing constitutionalism in Africa and one which requires the active engagement of academics.

Chapter Breakdown

Chapter One

A definition of constitutionalism as it operates in Africa. The African Union and the East African Community. How does this experience with constitutionalism of African Union region compare with that of other regions as presented ?

In developing thoughts further on constitutionalism within the region, or comparatively across regions, what other aspects of the phenomenon of constitutionalism are worth exploring? For example, have its social, cultural, and economic aspects been sufficiently explored?

Chapter Two

Constitutionalism in Kenyan History and Today

Focus on sources of constitutional thought and reform in Kenya as well as upon an analysis of the reasons for and content of the current wave of constitution-making in the country.

Chapter Three.

Cultural Diversity and Constitutionalism

Focus on the question of national identity formation as drawn from ethnic, religious, and political movements countries; the adaptation of constitutional forms to local circumstances, and the critiques of constitutionalism that emerge in both traditional and modern African societies.

Chapter Four

The Development of Impoverishment: Constitutional accountability and international responsibility. Focus on the international dimensions of constitutional change, both the internal problems of development that bear on constitutionalism, and the international factors that affect development and have an impact on constitutionalism; the mechanisms that are needed to ensure constitutional accountability.

Chapter Five

Nation-Building Development and Constitutionalism in Kenya.

Focus on the process of nation-building and development; the means for asserting national identity adopted by countries with no pre-colonial history of nationhood as well as states with a long tradition of nationhood. Law reform as a panacea for conflict, underdevelopment and regional integration.

Conclusion

Bibliography

  1. B.O. Nwabueze, Constitutionalism in Emergent States, London C, Hurst & Co. 1973.

  2. A.C. Dicey, An Introduction to the Study of the Constitution, 9th Edn 1939.

  3. S.A. de Smith, Constitutional and Administrative Law, Penguin Books, Sixth Edition, 1989.

  4. H.B.Ndoria Gicheru and A.K.Miano, A Textbook of the Constitution and Government of Kenya, Nairobi, Sterling Publishers Private Ltd. 1987.

  5. E.C.S Wade and A.W.Bradley, Constitutional and Administrative Law, Longman, London and new York, Tenth Edition, 1985.

  6. G. Marshall, Constitutional Theory, Oxford, Clarendon Press, 1971

  7. Y.P.Ghai and J.P.W.B. Mc Auslan, Public Law and Political Change in Kenya. Nairobi OUP, 1970.

  8. J.B. Ojwang, Constitutional Development in Kenya, Nairobi ACTS Press,1990.

  9. Yas Vyas, Kivutha Kibwana, Okech-Owiti and Smokin Wanjala (Eds) Law and Development in the Third World, Faculty of Law University of Nairobi, 1994.

  10. Ohnesorge, J. ‘The Rule of Law, Economic Development and Developmental States in Asia', in Antons, C. Law and Development in East and Southeast Asia, London and New York, RoutledgeCurzon, pp. 92-93)

  11. “Promoting the Rule of Law Abroad: The Problem of Knowledge.” Carnegie Endowment Working Paper no. 34. Washington, DC: Carnegie Endowment for International Peace, January 2003

  12. de Soto, Hernando. The Other Path: The Invisible Revolution in the Third World. New York: Harper Collins, 1989

  13. Carothers, Thomas. Aiding Democracy Abroad: The Learning Curve. Washington, DC: Carnegie Endowment for International Peace, 1999.

  14. Burg, Elliot M. “Law and Development: A Review of the Literature and a Critique of ‘Scholars in Self Estrangement.'” American Journal of Comparative Law 25 (1977).

  15. International Bar Association. “Report on Zimbabwe.” London: International Bar Association, 2001. Available online athttp://www.ibanet.org/misc/zimbabwe_report.asp.

  16. Kaufman, Daniel, Aart Kraay, and Massimo Mastruzzi. Governance Matters III: Governance Indicators for 1996-2002. Washington, DC: World Bank, June 2003.