How The Constitution Makers Planned For Its Implementation By Yash Pal Ghai
Some members of the Constitution Kenya Review Commission were concerned that the kind of transformative constitution that its terms of reference required – and the public wanted – would be quickly dismantled by Kenyan politicians and civil servants or in other ways disregarded, given that the constitution would provide few opportunities for corruption and other illicit activities that had become so pervasive in public life since the time of the first President.
So they gave considerable thought to building within the text of the constitution a scheme for its protection and implementation.
State power is delegated from and by the people
Among the key strategies was to acknowledge, that all state power derives from the people; it is merely delegated to the President, Parliament and other state organs: “Sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” (Article 1(1)).
State organs are not always exercising their powers; just as frequently they are discharging their obligations, as for example, under Article 43, which guarantees people economic and social rights, or Article 42, protecting their right to a clean and healthy environment.
That delegation of power is not absolute but is for very clearly specified purposes. In respect of the most powerful state official, the President, for example, her obligations are stated thus: she “(a) shall respect, uphold, and safeguard this constitution; (b) safeguard the sovereignty of the Republic; (c) promote and enhance the unity of the nation; (d) promote respect for the diversity of the people and communities of Kenya; and (e) ensure the protection of human rights and fundamental freedoms and the rule of law.” (Article 131 (2)).
If state power is exercised for other than the specified purpose, it is invalid, being against the constitution. In extreme cases the President and ministers, or members of other state organs, suffer penalties for violation of the constitution or laws, and can be removed from their office.
State power must be exercised to promote national values and principles
Secondly, the constitution defines clearly the national values and principles that bind all people and institutions, but, particularly and more extensively, those in charge of, or working within, state organs.
The message to the President as to the most humble public servant is that they are not free to exercise their powers as they wish but for specific purposes.
The Kenyan state dominates all sectors of society and it would be dangerous if its powers and resources could be used and manipulated by a handful of people (politicians, bureaucrats and their friends) at their whim.
So the purposes for which alone state power can be exercised are set out clearly as national values and principles. They appear most succinctly in Article 10 (2); chief among them are: national unity, rule of law, democracy, human rights, social justice, equality, good governance, integrity, participation, transparency and accountability.
There are some additional values in respect of devolution, including self-government, equitable sharing of national resources, and fair treatment of the minorities and marginalised communities (Article 174).
In addition, specific institutions have their own mandates and values, like the judiciary (for example, “justice shall be done to all, irrespective of status”, “justice should not be delayed” and the protection and promotion “of the purpose and principles of this Constitution” Article 159).
Independent commissions and office holders (to, “secure the observance by all State organs of democratic values and principles” and the “promotion of constitutionalism” Article 249) are a key tool, especially, during the constitution’s infancy, the Commission on Implementation of the Constitution.
The principles for management of state finances are very clearly spelled out to ensure fair distribution between the centre and counties, as well as efficiency, prudent use of resources and, most of all, honesty and integrity to combat corruption in public life.
The Central Bank, for example, is responsible for monetary policy and price stability, in its own judgement, free from government pressure.
The Controller of Budget and Auditor General and the Commission on Revenue Allocation are all supposed to be independent.
In many ways Kenyans inherited the colonial state, including its coercive power and inclination towards its frequent and arbitrary deployment. Citizens are the most victimised group by security forces (particularly the police and, increasingly, the military).
But the constitution seeks to shift the duties of the security services towards the protection of the people: “their rights, freedoms, property, peace, stability and prosperity, and other national interests” (Article 238).
They must respect the law, and show the “utmost respect for the rule of law, democracy, human rights and fundamental freedoms”.
Courts and interpretation
Courts have been given the major responsibility to interpret and uphold the constitution. The constitution facilitates people’s access to courts by enabling civil society organisations or even an individual to raise constitutional issues for resolution by the judiciary (Article 22 and 25).
Courts must interpret the constitution so as to promote its purposes, values and principles; advance the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permit the development of the law; and contribute to good governance (Article 259).
The constitution is specially concerned with protection of human rights: “develop the law to the extent that it does not give effect to a rights or fundamental freedom; adopt the interpretation that most favours the enforcement of a right or fundamental freedom” (Article 20).
Democratising the state
Democracy and national unity are perhaps the two most important national values. A significant part of the constitution is aimed at these objectives, creating, but not assuming, a harmony between the two.
Such notional and minimal democracy as we have had can be a threat to national unity, for politics are deeply entangled in ethnicity.
The daunting task of marrying democracy with national unity is done primarily through defining the objectives and basis of politics in terms of promoting national unity.
This is most obvious in the rules governing political parties (Article 91). A political party, for example, must have a “national character”; it must promote and uphold national unity; respect the right of all persons to participate in the political process, including minorities and marginalised groups; and promote the objects and principles of this constitution and the rule of law. The electoral process must itself be free and fair.
Ultimately the achievement of the objects of the constitution depends on the national and county executives and legislatures.
The major weakness of Kenya’s constitutional order has been the executive and the legislature, neither committed to social justice and human rights, or the promotion of national unity — and deeply corrupt. It is clear that unless we get the kind of government that the constitution envisages, fundamental constitutional principles will be subverted. Parties and elections are keys to this.
So the responsibilities and obligations of the state have been distributed among a number of institutions, unlike previous concentration of all powers in the President.
Each institution has been provided with incentives to discharge its obligations fairly and independently — whether this happens all the time and with all the institutions is explored in forthcoming articles in Katiba Corner.
We end where we started — all state power belongs to the people, and is delegated to state institutions to achieve constitutional objectives. But not all power is delegated.
People retain the right to be active participants in the democratic order; and to remove members of the legislatures for breach of their obligations, however hard, unconstitutionally, they have made their own removal.
Civil society, which inspired the constitution is still active, despite antagonism from the government. But given deep-rooted weaknesses of the Kenyan political order, will the people be ever motivated to resort to their sovereignty to ensure the implementation of and respect for the constitution?
The author is a director of the Katiba Institute
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