Ali Mazrui and constitutionalism By Yash Pal Ghai

Last Tuesday the first of the Annual Ali Mazrui Memorial Lectures was given in Mombasa under the auspices of the Umma University. I was greatly honoured to present it, with very distinguished discussants, Chief Justice Mutunga and distinguished lawyer Pheroze Nowrojee. Mazrui achieved an iconic status internationally as a political scientist. Like me, he was banished from Kenya for many years (I suspect by the same person), during which time he wrote more than 20 books and more than 100 articles, ranging over a host of topics. My lecture was about his scholarship and the Kenya constitution. The CKRC had invited him to discuss constitutional reform and to expose Kenyans to his thinking.
Mazrui was not a lawyer but he had a detailed knowledge of the experience of African states with constitutions since the 1960s, and learned interesting views on constitutional options and reforms. His social science research (covering political science, history, ethnicity, culture, religion, and public policy) provided an excellent basis for designing a constitution. He had a much better understanding of the issues confronting the African state than most lawyers — and clear notions of how these issues should be resolved. As a liberal, he was committed to constitutionalism which he defined in one of his early essays as: “Constitutionalism in the broader society is supposed to be one of the anchors of stability — helping to define the rules of the game, helping to check the excesses of power, seeking to extend democratic rights and due process…” In another article he defined ‘constitutionalism’ broadly as a procedural approach to politics; a faith in legal solutions to political tensions; a relatively open society with institutionalised competition for power in the polity.
The framework that he used in developing his proposals for constitutions was relatively traditional – the organisation and structure of the state for a fair and democratic society. But he developed his own model for the state, in many respects quite different from the western model that characterised independence constitutions in Africa — few of which survived for more than a short time, in Kenya precisely a year. He was much concerned that neither a standing army nor a political party is part of African culture (he was not totally accurate about the standing army), just as he often regretted that African constitutions were not written in African languages, and had to be accessed in European languages by people unfamiliar with them. He was critical of the tendency of drafters of African constitutions to look to the models and experiences of constitutions to Europe or the US, and regretted that they never ask themselves what they could learn from the experiences of African states before colonialism.
He identified ethnicity as the major problem confronting constitutionalism in Africa. He wrote: “Ethnic pluralism, in much of Africa, tends to be among the most politically sensitive of all social issues. The risk of violence between tribes is at the centre of Africa’s twin-crises of identity and integration. Britain’s indirect rule, where it was successful, tended to sharpen ethnic loyalties. To that extent


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