A couple of years ago, it seemed that South Africa had made a great success of its 1996 Constitution while Kenya was floundering with its 2010 Constitution.
Since Kenyans had copied significantly from the principles and values of South Africa Constitution, it seemed that ours was heading for disaster.My foreign friends used to tease me and say: “Why is your Constitution, copied from South African, floundering with disappearances of state resources, while South Africans have made such a success of theirs?”
By then I had a ready answer: “South Africans have Mandela while we had the Kenyatta family”.
In South Africa, the constitution (representing a major social and political transformation) was engineered primarily by politicians of different races and only secondarily by civil society, while in Kenya, it was engineered primarily by civil society (except in the last stages when politicians took over, almost by force).But in South Africa the distinction between politicians, trade union and civil society groups was narrow, unlike in Kenya where the gap was enormous — a narrow group of politicians frequently changing memberships, but pursuing the same selfish interests.The South African parties, much better organised and enduring than in Kenya,supported the constitution, while the real support in Kenya came from civil society and “low level” groups—against the interests of the political class which devoted all the time to their own interests.
The recent economic and social crisis of South Africa is being attributed to corruption pursued by Zuma (assisted by some foreign businessmen). The Kenya bourgeoisie of particular tribes have also long been experts in corruption, likewise with the assistance of foreigners. However, while the Kenyan elite is searching for constitutional amendments to further its hold on the state, in South Africa it is the long oppressed who are seeking amendments to secure their basic rights.
A brief analysis of the formation of the constitutions of two countries might throw some light on their fortunes.Critical differences in South Africa came as between parties (while all in the end endorsed the constitution). In Kenya the fundamental differences were between politicians and civil society. There is considerable consistency in membership in and loyalty to political parties in South Africa while in Kenya there is no such thing as party loyalty—a politician can change party allegiances several times over months. The South African constitution enjoyed enormous public and party support, while in Kenya a majority of politicians and clergy opposed the constitution, out of tune with the people who provided great support for the constitution. Once adopted in the referendum by the people, it was snatched by the political class.
In South Africa the Constitution was on the whole respected and its provisions honoured. It would seem that the Kenyan Constitution places greater responsibility and load on the state and citizens than does the South African Constitution. Perhaps South Africa relies more on the political process than Kenya, on the above issues and other aspects of the Constitution.
Is the primary function of the Kenyan constitution merely to be manipulated so far as it suits the new rich elite? Problems with our politicians is that they hate democracy, do not like the constraints it imposes on the regime, and do not how to cope with your own system (which has varied frequently).
A key feature of the South African and Kenya constitutions is that each sets out in detail the values that it seeks for the people. There is considerable similarity between the values.
There is more recognition of cultural and ethnic diversity in the South African constitution than in Kenya. On the other hand, national values are more extensively and somewhat frequently spelled out in Kenya than in South Africa constitutions. While the main source of values—human rights — are broadly similar in the two countries (set principally by South Africa), the Kenyan Constitution seems more ambitious than the South African. The Kenya Constitution not only states principles and values but goes to considerable extent to try to ensure their implementation.
It perceives, quite correctly, that the country has degenerated into a society divided into the rich and the poor—to a considerable, but decreasing, extent the distinction corresponding to ethnicity.The Constitution espouses a secular state — if only because of the variety of religions. The goals and methods of the state are set out in Article 10( 2 ) (though not fully), including both the values and means of achieving them. The values include national unity, sharing and devolution of power, the rule of law, democracy and participation of the people as well as human dignity, equity and equality, social justice, and protection of the marginalised. These are to be achieved through good governance, integrity, transparency and accountability—and sustainable development.
Almost the whole of the Constitution is to give effect to these goals—the most extensive chapter being the Bill of Rights, describing both the reach of rights (wide!) and how they are to be implemented. The Bill of Rights makes special effort to protect the rights of those of the elderly, disadvantaged, disabled, minorities and marginalised communities.
LEADERSHIP AND INTEGRITY
The Constitution also seeks to firm up national values in a chapter with the title of Leadership and Integrity, dealing with the conduct of state officers. Public trust is to be exercised in a manner that is “consistent with the purposes and objects of this Constitution; demonstrates respect for the people; bring honour to the nation and dignity to the office; and promotes public confidence in the integrity of the office, and vests in the State officer the responsibility to serve the people, rather than the power to rule them”. Alas, this chapter has been more or less disregarded by the state and to some extent also by the judiciary. The enormous degree of corruption that defines Kenya’s state system is in no small degree due to the ignoring of this chapter. Perhaps the recent efforts by Uhuru and his new team of investigators will bring the chapter to live.
Finally, I say a few words about what I consider a critical chapter — that of elections, to which a whole chapter is devoted. An elaborate process is established to ensure that the elections are free and fair. Of great importance are the rules governing political parties in order to create a political environment that promotes national values.
To be registered to contest elections, a party has to satisfy a number of conditions, geared towards national orientation. It must have a “national character”, and a democratically elected governing body; it must promote and uphold national unity, abide by democratic principles of good governance. It must not be founded on a religious, linguistic, race, ethnic or regional basis or seek to engage in an advocacy of hatred on any such basis. Nor must they engage in or encourage violence by, or intimidation of, the members, supporters, or opponents. Nor must any party have a paramilitary force or similar organisation. Nor (watch this) engage in bribery or another form of corruption. I have failed to persuade two IEBCs that these rules would disqualify most political parties in the elections we have had. Nor has civil society or the media raised these disqualifications applying to major political parties.
Is it time that Kenyans began to read our Constitution?What about, to begin with, restoring its teaching in our schools?
Yash Pal Ghai, a Constitutional Law Professor, is a Director at Katiba Institute
(This article was first published by the Star Newspaper on 16 March 2019)