Kenya: New Constitution is Only First Step

Image: Flickr, Christian Riis Kistrup
Image: Flickr, Christian Riis Kistrup

Kenya's referendum to decide on a new constitution ended a decades-long, tortuous journey to reach a basic law to regulate the country's politics and give voice to all its citizens.

A referendum in 2005 had rejected a new constitution, but the biggest crisis came at the end of 2007, when unprecedented post-election violence threatened to rip apart the political and social fabric of the once stable and prosperous East African country. Will a new constitution put Kenya back on the road to stability and prosperity?

Not necessarily. Adhering to the principles of the constitution, rather than just having a constitution, is what makes countries work.

Weaknesses in previous constitutions that were first inherited from Britain and tinkered with over the decades were at the heart of the quest for a new governing framework in Kenya. These weaknesses included the perceived omnipotence of the executive branch; the failure to guarantee basic human rights; the inability to counteract the destructive pattern of ethnic-based politics; and the lack of popular input in the constitution’s development.

Added to these problems has been rampant corruption in government circles, including the mismanagement of elections – the spark that ignited the 2007 crisis.

It is therefore appropriate to caution against expecting that popular approval of the draft constitution will translate easily into good governance, political stability and economic recovery. Good constitutions undeniably contribute to good governance. However, more important is a culture of constitutionalism – the adherence to and practice of commonly-held principles and attitudes, and the acceptance of certain norms and values by both governments and citizens. These make for a properly functioning polity.

Constitutions only spell out the rules for the allocation, distribution and limitation of government power, give citizens protection and rights and strike a balance between these rights and powers. In a properly-functioning constitutional state, these provisions would be accepted for all lawmaking and government actions.

But constitutionalism refers to the internalisation and active behaviour that give life to constitutions in practice. Such has not been the case in many African states, where formal and informal systems co-exist with severely negative implications for the country, manifested by corruption, lack of accountability, nepotism, authoritarianism and disregard for the rule of law. Kenya has been no exception.

The post-election violence in Kenya erupted because not all ethnic groups were enjoying the same constitutional privileges. This resentment was exacerbated by the systematic exclusion of some ethnic groups from national political leadership. A combination of political and socio-economic marginalisation led to the violence because accepting defeat when the stakes were high would mean losing too much. Socio-economic imbalances that were rooted in the state’s unequal treatment of different ethnic groups, due to disregard of the constitution, triggered the unrest.

How then, can Kenyans ensure that their new constitution will not become a façade like the previous one and many others in Africa?

The key is ensuring that a constitution and respect for it become embedded in the political culture of the country. The approach that Kenya and many other African states have adopted was captured by John Adams, an American politician and political philosopher, in 1780 when he said, “We are a government of laws and not of men.”

Respect for the rule of law and the constitution, regardless of who is in power, is the key to advancing the values of democracy on the continent. The African Peer Review Mechanism could provide some guidance here: through peer review, Africans discuss and assist one another to reform their governance practices.

However, what is needed first and foremost is the political will of the leaders to do so, and the internalization of constitutionalism by the citizens. President Mwai Kibaki and Prime Minister Raila Odinga and the people of Kenya need to demonstrate this will before hopes can be expressed over Kenya’s future.