Katiba Institute_National Values and Principles of the constitution.pdf

Yash Pal Ghai and Jill Cottrell Ghai Editors

Katiba Institute Nairobi

NatioNal Values aNd PriNciPles of the coNstitutioN

Cover design & Layout by John Agutu Email: [email protected]

Printed by Colourprint Ltd., P.O. Box 44466 00100 GPO Nairobi

NAtiONAL VALues ANd PriNCiPLes Of the CONstitutiONCopyright Katiba institute, NairobiYear of publication 2015

the production of this book has been possible thanks to the support of the Canadian high Commission and The Star newspaper.

Contents

Preface ........................................................................................... vThe Authors .................................................................................. viiAbout this book ............................................................................ xi

1. National Values and Principles: Roots of Constitutionalism Yash Pal Ghai ...................................................................... 1

2. National Identity and Respect for Diversity: Foundations of the State Yash Pal Ghai ...................................................................... 8

3. Patriotism Chris Kerkering .................................................................... 14

4. Constitution and Culture: Being a Kenyan Mshai Mwangola .................................................................. 20

5. Secularism and Religion Gabriel Dolan ...................................................................... 25

6. Democracy: The primary constitutional value Yash Pal Ghai ...................................................................... 32

7. Public Participation: Engaging Citizens in Policy Making Grace Wakesho Maingi ........................................................ 39

8. Separation of Powers, Checks and Balances, and the Rule of Law Yash Pal Ghai ...................................................................... 44

iv National Values and Principles Under the Constitution

9. The Trial of Integrity in Kenya PLO Lumumba ................................................................... 49

10. Equality and Equity: Key Constitutional Values Heidi Evelyn ........................................................................ 55

11. The Missing Link: Challenges in Legislative Accountability in Kenya Wanjiru Gikonyo .................................................................. 62

12. The Values of Money Jason Lakin .......................................................................... 69

13. Human rights: Foundations of Kenyas Constitution Catherine Mumma ................................................................ 78

14. Human dignity: Underlying basis of human rights: Part I Yash Pal Ghai ...................................................................... 84

15. Judicial interpretations of the right to human dignity: Part II Yash Pal Ghai ...................................................................... 89

16. Sustainable Development the Environment, the Future and the Vision

Waikwa Wanyoike ............................................................... 95

Preface

Most of the articles in this book were originally pub-lished in the Star newspaper, as part of their Katiba Corner series in the Siasa section on Saturdays. Katiba Institute felt that it would be useful to the people of

Kenya if these articles could be more widely available. There is a lot of interest in the Constitution, but not everyone has access to a copy of it, and, even if as laws go it is clearly written, it is not very easy reading. We hope that people will find these articles are an

approachable way to understand some aspects of the Constitution.We anticipate that civil society organisations may also find

them useful, and for them and for readers more generally we have included a few things to think about after each chapter.

At about the same time, we are hoping to publish two other series of Katiba Corner articles: one on devolution and the other on minorities and the Constitution. We are also planning to have these series translated into Kiswahili, to make them even more readily available.

Katiba Institute is most grateful to the Star for creating the Katiba Corner possibility, to all the authors, and to the Canadian High Commission in Nairobi for funding the publication of two of these books, including this one.

Finally we are grateful to Kenyas great cartoonists, Gado and Vic for allowing us to liven up this publication with their cartoons.

Yash Pal Ghai, Jill Cottrell Ghai and Waikwa Wanyoike, Directors, Katiba Institute March 2015

The Authors

Note: many of the authors are members/employees/directors of or-ganisations. The views they have expressed in these articles are their own and not necessarily those of their organisations.

Gabriel Dolan is an Irish Catholic Priest who has spent the past 33 years living in Kenya. He has tried to serve the people and justice in Turkana, Kitale and currently in Mombasa. He directs a local human rights organisation called Haki Yetu that deals with matters of land, eviction, cohesion, GBV and governance. He is a board member of Katiba Institute, KHRC, IMLU and Muhuri. He also does a weekly column in the Saturday Nation. His commitment to justice is inspired by his religious belief but regrets that most of what passes as religious practise in Kenya has little to say about the transformation of society.

Heidi Evelyn is a member of the Law Society of Upper Canada and has many years of experience working as Tribunal Counsel at an Ap-peals Tribunal in Ontario, Canada. A citizen of Kenya and Canada, Heidi has taken a keen interest in Kenyas new constitution, especially matters relating to the administration of justice and equality rights. Heidi has worked on a number of legal writing and advisory projects in Kenya including consultancy work sponsored by the Commission for the Implementation of the Constitution. She is currently a Busi-ness Development Consultant with a leading law firm in Kenya.

Jill Cottrell Ghai holds degrees from the University of London and Yale University and was for forty years a university law teacher, teach-ing economic social and cultural rights in her last few years. Now she is a Director of the Katiba Institute and spends much of her time re-

viii National Values and Principles Under the Constitution

searching for cases and other publications, writing, and being involved in the Institutes programmes for lawyers, judges and civil society, as well as commenting on draft legislation.

Yash Pal Ghai is a director of the Katiba Institute and was chair of the Constitution of Kenya Review Commission and of the National Constitutional Conference which adopted the Bomas constitutional draft. He has been member of or advisor to many other constitution making processes, in Africa, Asia and the Pacific. He holds degrees

from Oxford and Harvard universities including the higher doctorate (Doctor of Civil Law). He was a university teacher of law from 1963 till 2006, holding posts at universities in East Africa, Sweden, England and Hong Kong. He is the author or editor of some 20 books and nearly 200 articles and chapters in books and academic journals.

Wanjiru Gikonyo is the National Coordinator, and a founder of The Institute for Social Accountability (TISA). She also works as a consultant in local governance and the design of social accountability tools/programmes. She is the author of the CDF Social Audit Hand-book, and has published numerous papers on decentralized govern-ance. Under her stewardship The Institute for Social Accountability has established itself as a leading institution in devolved governance, building capacity and providing governance solutions in the sector. TISA is widely regarded and is working closely with numerous official

institutions in the implementation of devolution in Kenya. Wanjiru has a degree in Business Organisation from Herriot-Watt University, Edinburgh, Scotland and is in the final stages of her Masters of Arts

in Rural Sociology and Community Development at the University of Nairobi.

Chris Kerkering is an attorney licensed to practice in the United States. He received a Bachelor of Arts from Columbia University in 1995 and a Juris Doctorate from Harvard Law School in 2001. Mr.

ixAuthors

Kerkering currently lives in Nairobi where he works on issues relating to rule of law, rights to fair trial, and criminal and civil reforms in both Kenya and Somalia.

Jason Lakin is the Country Manager for the International Budget Partnership Kenya. He has worked with IBP for the last six years, where he spends his time encouraging greater transparency and public participation in public finance at national and county level in Kenya.

He is also a regular columnist for The East African and the co-au-thor of The Democratic Century with the late Seymour Martin Lipset. He holds a Ph.D. in political science and social policy from Harvard University.

PLO Lumumba is currently the Director and Chief Executive Of-ficer of the Kenya School of Law. He is a former Secretary of the

Constitution of Kenya Review Commission and former Director of the defunct Kenya Anti-Corruption Commission. He is well-known as an author and orator as well as a legal scholar. He has also prac-tised as an advocate for many years and is counted among the leading practitioners.

Grace Wakesho Maingi is Executive Director of Uraia, which has the mission of facilitating the provision of quality civic education and practical mechanisms for citizen engagement in public affairs. She is a human rights lawyer with over thirteen years work experience at the national, regional and international level in key non-governmental organizations in Kenya. She has wide experience in womens rights, access to justice, public interest litigation, civic education and transi-tional justice issues.

Catherine Mumma is a human rights lawyer, and a Commissioner of the Commission for the Implementation of the Constitution. She holds degrees from the Universities of Nairobi and London, and is

x National Values and Principles Under the Constitution

an advocate of the High Court of Kenya. She has worked in the pub-lic service (the State Law Office) and was one of the pioneer Com-missioners of the Kenya National Commission on Human Rights (KNCHR), and also a Commissioner on the Independent Review Commission (IREC) which was appointed to look into the electoral issues that affected the 2007 general election. Ms Mumma also has experience in the civil society sector where she has worked in 42 com-munities with vulnerable populations and marginalized populations.

Mshai Mwangola holds a doctorate in Performance Studies from Northwestern University (USA), a Masters of Creative Arts from the University of Melbourne (Australia) and a Bachelor of Educa-tion from Kenyatta University (Kenya). An oraturist directing and performing in theatre and storytelling as her genres of choice, she has also taught and researched different aspects of culture, arts, thea-tre and performance for three decades. Mwangola chairs the Board of Trustees of Uraia Trust (Kenyas National Civic Education Pro-gramme). She is currently completing her sixth and final year as a

member of the Kenya Cultural Centre Governing Council, four years of which she served as the Chairperson.

Waikwa Wanyoike is Executive Director of the Katiba Institute. He appears regularly at the High Court and the Supreme Court of Kenya on ground-breaking constitutional matters. Previously, he practiced law in Toronto, with an emphasis on criminal, immigration and refu-gee law, human rights and constitutional law. He also taught advocacy at the Osgoode Hall Law School of York University, Canada. Waikwa was educated at Kenyatta University in Nairobi, Kenya, York Univer-sity in Toronto, Canada. He received his law degree from Queen`s University in Kingston, Canada. He is called to the bar in Ontario and is a member of the Law Society of Upper Canada.

About this book

This is a book designed to be thought about and dis-cussed. We hope that Kenyans and others who are interested will read it, share it and talk about it. We believe that the Constitution is a tool to be used by the people. That is why the motto of Katiba Institute is Constitution as an Instrument for Change. Of course, it is important that the na-tional government, including the President and the Cabinet, Par-liament and the courts, and the county governments, as well as the independent commissions (like the Independent Elections and Boundaries Commission and the Kenya National Commis-sion on Human Rights, for example) all take seriously their roles and responsibilities under the Constitution.

Kenyans adopted a new Constitution in 2010 because they wanted change. But real change will come only if the people de-mand it. The Constitution has empowered the people to take re-sponsibility for their own welfare and the respect for and imple-mentation of the Constitution. Their sovereignty is expressed most clearly in that they elect the President, members of Par-liament, Governors and MCAsand have the right to dismiss them if they fail in their duties (except for the President whose dismissal is a matter for Parliament). People, either individually or collectively, can hold civil servants unaccountable, ask the government for information previously held secret, initiate pro-posals for policies and laws, and participate in the making of laws and other government decisions. The Constitution has also recognised and protects the rights and freedoms of individuals and communities.

xii National Values and Principles Under the Constitution

The people will be more able to exercise their authority and these powers and protect and exercise their rights and freedoms if they understand what the Constitution says about the respon-sibilities of public officers and of the people themselves and the ways in which they can exercise their authority.

Yet the Constitution, even if it is clearer than many consti-tutions, is not a very easy read. The authors of this book have all tried hard to make what they have written both accurate and readable. And they have tried to relate the Constitution to the real issues for Kenyans.

So, back to how we hope you will use it. A book that is about ideas and that is what this book is will often be more meaningful if the readers discuss it with others. And to make it easier for people to relate to their own lives, and to the realities of Kenya, we have followed each piece with a few questions to think about.

The Editors

1 National Values and Principles:

Roots of Constitutionalism Yash Pal Ghai

There is hardly any constitution in the world that places as much emphasis on national values and principles as Kenyas 2010 Constitution. Why? Until recently consti-tutions (except in communist states which paid lip service to values but had no intention to observe them) were concerned largely with institutions of the state, vesting them with powers. For the most part, the constitution did not specify how these powers would be exercised, although, with the introduction of Bills of Rights, some limits were imposed on the exercise of the powers as was some responsibility for the protection of these rights. The rights were somewhat limited, judged by contempo-rary standards. Although many early constitutions emphasised the authority to rule and to subjugate minorities or groups newly conquered, gradually as the state stabilised, common social and moral values emerged, knitting the country together.

Kenyas ConstitutionKenya adopted a new Constitution in 2010. This was the end of a process that began in the 1990s. In 2000 the Constitu-tion of Kenya Review Commission (CKRC) was set up. It col-lected views from the people of Kenya and prepared a draft Constitution in 2002. This was considered by the National

2 National Values and Principles Under the Constitution

Constitutional Conference (meeting at the Bomas of Kenya) from 2003-4, and a revised version was adopted by that con-ference. The government of the day did not like some features of the draft, and they took over the process, produced a draft that they preferred (although many of the provisions were the same). But the government draft was defeated in a referen-dum in 2005.

Nothing happened for a while, but after the post-election violence of 2007-8 there was a feeling that a new constitution might improve the chances of a more peaceful Kenya in future. In 2009, the government appointed the Committee of Experts (CoE) to review the previous draft constitutions and produce a new, harmonised draft. Eventually, after public debate, revision, consideration and some changes by MPs, the people of Kenya adopted the new Constitution, and it came into force on August 27 2010.

In many newer states, including Kenya, created by colo-nialism or internal conquests, out of widely differing peoples, there may be several, often conflicting systems of values, and the primary loyalties have often been communal rather than na-tional. This has created a number of problems, including that the people do not identify with the state or share in its politi-cal and moral mandateand therefore see it is a fair target for plunder and theft. It also means that we are so pre-occupied by own community however we define it, that we do not reach out to members of other communities. Experience shows that it is very difficult to run a country if there are competing loyal-ties, and a weak sense of commitment to the common cause and values. Those who take control of the state are tempted to use it to further their personal or tribal interests, marginalising oth-

3National Values and Principles: Roots of Constitutionalism

ers. Among the people there is little commitment or obedience to state laws or proceduresand the state relies increasingly on coercion rather than persuasion.

The Constitution of Kenya Review Commission (CKRC) was confronted with the situation described above. There seemed to be a total breakdown of moral values and standards, typified by great degree of corruption and the use of coercion by the state, the suppression of human and community rights. Kenya seemed divided by ethnic affiliations, lacking a feeling of common identity and shared destiny. There was widespread economic and social discrimination against some communi-tiesand little respect for their cultures and life styles. There was massive assault on the environment (typified by the cutting down of thousands of trees to produce charcoal for export to Saudi Arabia). Many individuals and communities lost their land, to land grabbers who included the highest state office-holders and their friends. Huge disparities of wealth and opportunity had emerged, in communities which traditional were largely egalitarian. There was no respect for the lawthe presidents word and commands effectively replaced the law, and the judici-ary was bought over or intimated to serve the interests of the state and the powerful. Democracy could not survive in these conditions, and even though, by the time of the CKRC, several elements of democracy had been revived, many critical aspects were absentand most importantly, the lack of accountability of the government, in the midst of ethnic voting and politics.

A majority of the CKRC considered that the agenda of fundamental reform of the state and promotion of national unity would not be achieved merely by some tinkering with state institutions. Conditions for true democracy needed to be estab-lisheddemocracy in which people were able to participate in


public affairs on a continuous basis, not periodically through rigged elections marked by bribes and ethnic loyalties. Some saw the constitution as a device to promote national values which would overcome the conditions which had in the first place led to the agitation for reform. The CKRC reviewed values neces-sary to deal with the shortcomings that I have outlined above, and gave a central place to these values in the scheme of the constitution. A critical role of values and principles is to bind state institutions as to the manner of the exercise of their pow-ers, sometimes to restrain the state, and often to use their pow-ers to achieve goals of the values (such as social and economic rights of the people, or the functioning of devolution).

National values are foreshadowed in the preamble: pride in diversity and commitment to national unity, respectful of the environment, nurturing the well-being of the individual, family, community, and nation, and government based on essential val-ues of human rights, equality, freedom, democracy, social justice and the rule of law. Article 10 makes values and principles bind-ing on all state institutions and all persons (that means every-one, including, if relevant, private citizens and companies) when applying or interpreting the constitution or making laws and policies under the constitution. It then sets out the values: (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) hu-man dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) good governance, integrity, transparency, integrity, transpar-ency and accountability; and (d) sustainable development.

These values are reiterated throughout the constitution, to indicate how they are to be achieved. For most state institutions the constitution sets out their precise purposes and responsi-


bilities. For example, it explains the principles of the electoral system (universal suffrage, free and fair elections, conducted by an independent commission, transparency and fair admin-istration, ensuring gender fairness, fair representation of per-sons with disability). It regulates the nature of political parties to eliminate the ethnic factor, promote nationwide parties, and requires the practice of democracy and integrity within parties and their accountability. It defines the role of parliament, and therefore of parliamentarians (they must protect the constitu-tion and promote the democratic governance of Kenya, ensure that laws necessary to implement national values are passed and implemented, conduct business in an open manner with pub-lic access to their proceedings, and facilitate public participation and involvement in the their legislative and other business).

The president is told at considerable length what his or her duties and obligations are (respect, uphold and safeguard the constitution, promote and enhance the unity of the nation, pro-mote and respect for the diversity of the people and communi-ties, and ensure the protection of human rights and fundamen-tal freedoms and the rule of law). All executive authority must be exercise in a manner compatible with the principle of service to the people and for their well-being and benefit. State officers responsible for law (particularly the AG and the DPP) must pro-mote, protect and uphold the rule of law and defend the public interest. Security forces are reminded that national security must be pursued in accordance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms. The constitution insists that a state officer has the responsibility to serve the people, rather than the power to rule them. State officers must serve the people honestly, and avoid situations of conflict of interest. Appointment to state service


must be made on the basis of personal integrity, competence and suitability, impartial decision making ruling out nepotism, favouritism, or other improper or corrupt practices.

The objectives of devolution are set out at considerable length. Devolution must be organised to promote democratic and accountable exercise of state power and the separation of powers, foster national unity, and self-government at lower lev-els, protect and promote the interest and rights of minorities and marginalised communities, and ensure equitable sharing of national and local resources throughout the country.

Judges are told that justice must be done to all, whatever their status, it must not be delayed and should be administered without undue regard to procedural technicalities. The judiciary is given the formidable task of custodian of the constitution, and given directions as to how it must interpret and apply it (promoting values of an open and democratic society based on human dignity, equality, equity and freedom, the rule of lawand constitutional purposes, values and principles). Independ-ent commissions must protect the sovereignty of the people, secure the observance by all state organs of democratic values and principles, and promote constitutionalism.

These principles and purposes also help the people to as-sess the performance of institutions, and to demand account-ability. They form the basis of liability for misconduct, and disqualifications from holding public office. And the violation of these values and principles constitute the grounds on which voters in a constituency may dismiss their members of parlia-ment or county assembly. Among the reasons for the removal of the president through impeachment is gross violation of this Constitution or of any other law. And hopefully, in future


elections people will cast their votes after considering how far the candidates have respected, observed and promoted national values and principlesand thus demonstrated their commit-ment to the constitution.

Things to think about Those who read this article must wonder how far state and

other authorities have paid any attention to these values and principles. In the next few chapters, members of Katiba In-stitute and others will explore these questions in the context of particular values and principles.

Are the president, parliamentarians, county officials, judges,

the police and military and other public servants any dif-ferent from those in the days of Jomo Kenyatta, Moi and Kibaki?

Is the level of corruption any less?

Have we managed to get rid of ethnicity as a factor in public

life?

Are the disparities between the rich and the poor any less?

You might like to think about the idea of values: what are

your own personal values? Do they differ from those in the Constitution or do you find that you are in sympathy with

the constitutional values? How do you think that people in public life, and indeed citizens, ought to live so that the vales are respected?

2 National Identity and Respect for

Diversity: Foundations of the StateYash Pal Ghai

A major problem facing Kenyas constitution makers was the ethnicisation of politics and the capture and ex-ploitation of the state by a tribe at the exclusion of other ethnic groups. Peoples primary identity was tribal or ra-cial. However, conflicting cultural values is no longer a general problem in Kenya; the market economy has seen to that. The problem now is conflicting economic interests. Though aspira-

9National Identity and Respect for Diversity: Foundations of the State

tions of Kenyans are broadly similar, their identities and loyal-ties differ. Tribal loyalty overrides loyalty to Kenya. Given scarce resources, competition for them takes ethnic form. Towards the end of colonial rule (when the main beneficiaries of the state were British commercial interests and white settlers), economic development was uneven even among Africans, so that some ethnic groups acquired better education, skills and opportuni-ties, producing differentiation in both wealth and status among them.

On independence, groups better placed during colonial rule had easier access to the state. Exploiting the state and its resources became even an greater force in producing inequal-ity between groups than during colonial rule. The major prize of politics became the capture of the state through the execu-tive presidency. The mobilisation of ethnic support became the principal mode of capturing state power. Politics took an in-tensely ethnic hue, leading to the exclusion of most other ethnic groups from the state and its resources (elections were regularly marked by state violence organised by the ruling group against competitors communities). Kenyans paid a heavy price for such politics: corruption, theft of state resources, illegal use of armed forces, bureaucratic inefficiencies, deepening the gap between the new rich and the poor, decline in services, assassinations, suppression of human and community rights, impunity and the destruction of the rule of law. It led to great bitterness between ethnic communities, preventing the emergence of a Kenyan identity and sense of nationhood. Another consequence of the obsession with ethnicity was that it hid a fundamental aspect of post-independence development: the formation of a new class, the Kenyan bourgeoisie, whose members shared common inter-ests, including the exploitation of the state and people.


Way to unity

The challenge of making a new constitution was therefore to promote a sense of Kenyan identity, transcending or rising above particular identities, especially ethnic identities, and pro-moting national unity and political integration, and to restruc-ture the state accordingly. A common identity and unity would be superficial and fragile if it did not also acknowledge the di-versity of the people based on tribe, race, language, religion or lifestyles. There is a third element in achieving common identity and unitysocial justice. Both colonial and post-colonial gov-ernments had appropriated the resources of some communities and marginalised them. Some communities were ostracised by the government and some were shown scant respect for their lifestyle. The primary challenge was therefore the choices that would ensure the fair balancing of these three objectives. The implications of this were wide ranging, affecting most aspects of the constitution, starting from values and principles, and cov-ering divisions and allocations of power (horizontally and verti-cally), institutions and procedures.

In a multi-ethnic state, each community should feel, or be made to feel, that it is part of the wider nation and be accepted as such. It should be able to practise its culture, including reli-gion and languageand have proficiency in the national lan-guage. All citizens should enjoy equal rights and equal opportu-nities. All communities should be included in state institutions and other spheres of life. Past injustices must be redeemed.

Values as national ideologyChapter 1 discussed at length national values as the basis of

public policies and conduct to bind the nation together. These values are reiterated throughout the constitution to specify how

11National Identity and Respect for Diversity: Foundations of the State

they govern the mandate and conduct of different institutions (like the presidents obligation to promote and enhance national unity and respect for regional and ethnic diversity) and deter-mine procedures (such as participation).

Citizenship

The implications of citizenship are both symbolic (of citi-zens constituting a distinct community strongly bound together) and substantive (equal rights and participation). The old laws were discriminatory in law and practice. The new laws are based on the inclusion of Kenyas various communities who have hith-erto been excluded from public life and benefits. It is clear that the constitution has given these communities a sense of security, belonging and identity.

Human rights

This is the subject of another article but here I want to draw attention to the ways in which the Bill of Rights balances the interests of individuals and communities, of common iden-tity and particular cultures, of the freedom of speech and the protection of community against hate speech and incitement, equal opportunities and amelioration of past injustices and af-firmative action, the neutrality of the state vis a vis religious communities with a strong protection of the freedom of reli-gion, and Swahili and English as official languages (to promote nationwide communication) with a strong commitment to the preservation and development of indigenous languages and cultures. Respect for diversity of cultures (discussed by Mshai Mwangola) is manifested in a number of ways, strikingly in the concern for the preservation of special lifestyles of communi-ties, particularly pastoral and forest communities. And there are


many provisions for the protection of minorities and bringing them into the mainstream of national life.

Representation and Inclusion

The balancing of the national and the communities in-terests is also clear from the electoral system. Parliament is described as manifesting the diversity of the nation and the president as the symbol of national unity, thus defining their mandates. Public services must ensure that their staff represent the diversity of Kenyans, drawn fairly and proportionality from all communities. Minorities, including for this purpose women, are guaranteed representation in national and county assemblies. Political parties must reflect national diversity in its membership and leadership, uphold national unity and cannot be based on religion, race, sex or region.

Power sharing

A major reason why Kenyans became so fragmented, ironi-cally, was the extreme centralisation of power by Jomo Kenyatta and Moiand the effective exclusion of all but their own tribal communities from any share in the powers and resources of the state. Devolution represents a major reversal of that policy, distributing power throughout the country, in areas previously neglected and sometimes ostracised. Devolution can be very powerful in the political integration of the country provided its objectives and ethos as defined in the constitution are respect-edand the mechanisms for co-operation and co-ordination are respected and used.

13Preface

Conclusion

Unity and diversity are both critical to Kenyas future. Di-versity is not only in the interests of smaller communities and other minorities. It is for the enrichment of all the people in a multitude of wayscultural, intellectual, history, economy, even cuisine A constitution cannot merely by its promulgation achieve its objectives. It is the people, and particularly governments and assemblies, political parties, civil society, and business and trade union organisations who must take the responsibility for its implementation consistent with its values. So far governments and political parties have not abided by the constitutionand their acts have been counter to its values. National effort, much greater than went into drafting the constitution, is needed for its implementation.

Things to think about How many ways might you, personally, finish the following

sentence: I am a? Would you say that each one represents an identity?

How important to you is the statement I am a Kenyan?

In what ways do you want your country to recognise your

other identities? How would you say your life is enriched by the fact that in

Kenya there are people with many different identities? In what ways do you as an individual recognise the diversity

of Kenya, and the various identities of your fellow Ken-yans?

What role is played by ethnic affiliation in national and

county politics? Is it good or bad for the country? If you think its influence is bad, how can we work to eradicate it?

3Patriotism

Chris Kerkering

The eighteenth century essayist Samuel Johnson famously said, patriotism is the last refuge of a scoundrel. And, indeed, history is full of people who have invoked patri-otism to serve their own ends rather than those of their country. One persons patriotism may be anothers treachery, and we have no test that can suffi ciently determine when patriotism turns into virulent nationalism. If patriotism proves so elusive or even worse dangerous if misused and misapplied, then why is

15Patriotism

it incorporated into the National Values and Principles of Gov-ernance under Article 10?

One answer is obvious. Those who are caretakers of the country and the constitution must be guided by love of Kenya and devotion to Kenyans. Too many of Kenyas state and public officers have failed to make Kenya and Kenyans the primary beneficiaries of their civil service. One reason Kenyans demand-ed constitutional reform was precisely to ensure that its leaders place the country and its citizens over their own interests. For those entrusted with state power, patriotism demands sacrifice, and requires leaders who will subordinate their self-interest to the countrys interests. Patriots dont take from the government coffers, dont enrich themselves at the cost of their constituents, dont conduct their affairs under a veil of secrecy, and dont use coercion to silence dissent. In short, patriots dont undermine the values and principles of good governance in the name of creating good governance.

Patriotism is a national political value that runs through nearly all the Constitution. It includes the obligation under Arti-cle 73 that State officers bring honour and dignity to the nation and promote public confidence in the integrity of the State of-fices. We see it in Article 91, which requires that political parties be advocates for Kenya and act in the best interests of Ken-yans, not for special interests or for the benefit of its members. Parliamentarians, members of the executive, and members of devolved government must also comply with the requirement that Kenya and Kenyans come first. The robust protection of broader socio-economic and environmental rights ensures that government officials do not use Kenyas most precious resourc-es the peoples own hard work and the diverse environment for their own ends.


A second, equally powerful, reason relates to the countrys long-standing ethnic divisions. Ethnic conflict predates inde-pendence and, regardless of how it began or who is to blame, has lasted far longer than it ever should. Some argue that this is a country inevitably divided along ethnic lines. Although those claims oversimplify the complex interplay between ethnicity, class, land, and other unresolved historical injustices, there is an undeniable truth to them. The patriotic ideal calls upon all Ken-yans to rise above these divisions and stand together as Ken-yans, not just as members of a specific community. Patriotism demands that people act for the good of the country with the understanding and expectation that what benefits Kenya bene-fits all of its communities. To that end the Constitution requires diverse governing bodies that include the voices of all ethnic communities. It calls on the people and the government to ad-dress some of the injustice such as improper land acquisition and distribution of resources that have fed some of the ethnic biases

Third, the Constitutional value of patriotism recognizes the threat of unchecked government power. That is why fair trial and freedom from cruel, inhuman and degrading treatment are identified as non-derogable rights ones that can never be limited. On this, the Constitution is explicitly clear: patriotism never justifies unlawful detention, torture, extra-judicial killings, or other violations of fundamental human dignity. These rights are inherent in all human beings. The Kenyan government, in turn, must guard against the dilution of these rights. Any claim to the contrary stands starkly opposite to the very notion of patriotism. Patriots rise above the belief that such violations are necessary no matter how compelling the circumstance.

17Patriotism

It may be tempting to think that the Constitution estab-lishes a new patriotism for a new Kenya: that the country must move on from past injustices and denounce ethnic division and political corruption as relics of the past. Yet moving on with-out undergoing rigorous self-reflection is both unrealistic and inadvisable. We can see the various commissions set up by the Constitution in that perspective: commissions are to investigate historical land injustices, ensure equitable allocation of state rev-enue, determine fair salaries for public officers, and ensure that the national police and other civil servants comply with funda-mental standards of human rights, prevent corruption, and pro-mote accountability. These constitutional provisions look both forward and backward. They recognize that Kenyans must un-derstand and learn from past injustices in all of their complexity before they can create a more equitable and just country. The national value of patriotism demands that all Kenyans undergo this rigorous self-reflection.

But we are still left wondering how to distinguish the pa-triot from the scoundrel or a strong sense of national pride from aggressive nationalism. Any claim to patriotism must be judged in context, and the constitution provides that context. Patriot-ism is just one of the fundamental values in the Constitution. Although patriotism is listed first, that does not place it at the top of some hierarchy. Patriotism does not stand alone, but must be judged in terms of its fidelity to the other national values set out in Article 10 and discussed in this series, including: national unity, democracy and participation, human dignity, equity, social justice, inclusiveness, protection of the marginalised, good gov-ernance, integrity, transparency, and accountability.

The Chief Justice has noted that patriotism does not mean putting country above justice, and Kenyans must be especially


alert to the kind of patriotism that justifies subverting other na-tional values in the name of love of country. The Constitution, in itself, is an act of patriotism, and Kenyans must view any der-ogation from its principles and values with great scepticism. As the first words of the Constitution declare: all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. It is the people who deter-mine how that power should be exercised. They cannot rely on the patriotism of others. Kenyans must be their own patriots, measure their own conduct by the extent to which they adhere to those values in Article 10, and demand that others do the same. Because Kenyan citizens are expected to be the patriots the Constitution envisions, they must constantly compare their actions to that mandate, with the common goal of bettering the lives of one and all. The Constitution demands that the term nyayo be understood in a different way: state organs must follow in the peoples footsteps, not the other way around. Kenyans must be aware of the past, but not bound by it; unified, but respecting diversity. Kenyans must establish integrity and justice as cultural norms and speak out when those norms are violated.

We all have the potential to be patriots or scoundrels and the fate of a country largely depends on the decisions its people make. No matter how trying the circumstances, patriotism de-mands that Kenyans, as a nation, stay true to the values set out in Article 10 and use them not fear, hatred, power, or greed as their guide. The Constitution demands no less.

19Patriotism

Things to think about The National Anthem says: Let all with one accord In

common bond united, Build this our nation together. How do you feel when you sing the National Anthem?

What do you feel most unites Kenyans (it would be good if

you can identify several different things)?

Can you think of examples of people in Kenya misusing

their patriotism?

How can patriotism be combined with feeling part of the

East African Community, or with feeling pride in being African?

The Chief Justice, Willy Mutunga, believes that as a judge it

is his duty to produce jurisprudence (that is decisions about the law) that is patriotic, as well as transformative. In your own work or life, what does being patriotic mean?

4 Constitution and Culture:

Being a KenyanMshai Mwangola

As part of the second liberation therefore, there has been an increasing recognition and appreciation of African culture in constitutional and national reconstruction. This nonetheless still requires radical change in peoples brainwashed minds and perceptions as to the true meaning of culture. (Constitution of Kenya Review Commis-sion (CKRC))

Does Kenya have a national culture? What is its relevance to the Kenyan constitution?

On Saturday 20th September 2014, I moderated a panel discussion at this years Storymoja Festival. Our discussion de-parted from the conclusions in a recently launched book ques-tioning the wisdom of entrenching culture as has been done in the 2010 constitution. It became increasingly evident to me, as the discussion proceeded, that much of the dis-ease with the current constitutional position on culture stems from differing understandings of what constitutes culture.

The CKRC pointed out in 2003, in the report of its Techni-cal Committee on Culture, that constitutions all over the world fall into three categories when it comes to their approaches to culture. There are those that consider culture as a retrogressive phenomenon, those that affirm culture as an important aspect

21Constitution and Culture: Being a Kenyan

of national life, and those that understand culture as being in-extricably linked to science and technology. The 1963 Kenyan Constitution fell into the first category. A creation of the colo-nial era, as the CKRC noted, it was under-girded by

a deep-seated attitude that African cultures by their very nature are backward, immoral and repugnant to justice unless proven other-wise. The Constitutions perception is that African cultures signifi-cantly contribute to attitudes of polarization and inter-tribal (eth-nic) conflicts instead of playing the role of unifying, edifying and

addressing petty antagonisms. [T]he Constitution therefore takes an approach that seeks to subvert and curtail the African cultures and to that extent even their positive value may after all be question-able.

Hence, in the half-century that followed independence, it became all too easy to blame most of Kenyas biggest challenges on culture, more precisely the backward traditions of African culture. This fossilised remnant from the colonial era remained obdurately chained to the past, seemingly impervious to any possibility of evolution and expansion beyond the parameters frozen in time by anthropological reports. The destructive con-sequences of what one might call tribalism such as political clashes and nepotism in government institutions, human rights abuses such as female genital mutilation, even scourges such as corruption and larceny were all blamed on (African) culture, even as Western culture was held up as the ideal to aspire to. No wonder then, that some of the most adamant opposition to the entrenchment of culture in the constitution comes from those who are also the most ardent at fighting these ills.

The limiting understanding of culture bequeathed us by the colonial state permeated far beyond its use of customary law to govern natives who were thus inextricably tied to tribes. It cre-


ated a mind-set that froze culture in the race/ethnicity moulds cast in the colonial past, and created a tug-of-war between the nation and the diversity of communities of belonging when-ever it came to questions of identity. Colonial-era hierarchy had privileged some identities racial, religious, social above oth-ers, making law to benefit the favoured. This elite defined the constitutional norm; the Others were marginalised on the grounds of their identity, their culture. Hence the nagging ques-tions that bother Kenyans persist into the second half-century of independence: Am I Kenyan before all else? What does it truly mean to say Kenya Kwanza?

The delegates who gathered for the Bomas constitutional conference embraced the making of a new national covenant as an opportunity to settle such questions. They abandoned the first mind-set discussed above, and chose in its place the most progressive of the three approaches: to affirm culture, which they defined as the cumulative civilisation of the Kenyan peo-ples, as the very foundation of the nation. So important was this this epistemological shift that they added a chapter on Culture to the Bomas Draft to clearly articulate it, with a framework providing for both a national culture and a diversity of cultures within the nation. This enlightened approach was however sub-verted by the Committee of Experts (CoE), which totally ig-nored the views of the people of Kenya as expressed at the constitutional conference. Adopting in its report the view that culture need not be entrenched in the Constitution, it recom-mended the deletion of the chapter. The CoE ultimately gave in to the pressure from legislators. It adopted a compromise posi-tion that retained culture in the constitution but watered it down considerably, abridging the chapter into a single article, even while conceding in its report that the provisions on culture were

23Constitution and Culture: Being a Kenyan

not contentious. The CoE made concessions on two grounds. To buy political goodwill, it left untouched articles that touched on the rights of communities, particularly those that had to do with historically marginalised communities. Then, it gestured to-wards the third category of constitutions, making provision for a constitutional, legal and regulatory framework that would facil-itate the promotion of the arts and sciences. This was largely to pacify the economic elite, specifically focusing their elaboration of the provisions on culture on the concerns of the creative in-dustries. In essence, what this amounted to was a strange hybrid that acknowledged the centrality of culture to the idea, spirit and entity of nationhood (articulated in the second mind-set), while simultaneously mutilating much of the articulation that gave it life beyond sphere of the economy, bringing us to the uneasy state of affairs that exists today.

That said, the 2010 Constitution has still made definite steps in at least acknowledging the critical software essential if Kenya is to truly fulfil its promise as a nation. The placing of Ar-ticle 11, in what might be considered the philosophical heart of the constitution it articulates the culture as the foundation of the nation. In my mind, it sits comfortably in the foundational chapters following the preamble that speak to the very essence of who we are as Kenyans and what Kenya is as a nation.

So, what is a national culture? It is the cumulative civilisa-tion of who we are as one people (not a medley of peoples), one nation. It is that intangible essence that we recognise when we say We are One. It is that essential DNA that Frantz Fanon refers to in the ground-breaking chapter On National Culture in The Wretched of the Earth that makes a nation out of the diver-sity of communities and peoples governed by a single state. In Fanons words, a national culture is the whole body of efforts


made by a people in the sphere of thought to describe, justify, and praise the action through which that people has created it-self and keeps itself in existence. A national culture does not just happen by chance, it is the intellectual product of a collec-tive endeavour that a people embrace as their vision of what they are at their very best. To paraphrase him, our Kenyan cul-ture take[s] its place at the very heart of the struggle for free-dom that Kenya is carrying. It is not the preserve of any one body, elite or otherwise, but the whole of our efforts together carrying within the contradictions, aspirations, and essence re-flective of ourselves to exist as an identifiable entity within the world. Our national culture is what makes us Kenyan. What price do we pay for not making this reality tangible?

Things to think about? What do you mean by the word culture?

What would you say is the culture of your own community?

Do you share the culture of your neighbours from other

communities?

How do you share your culture with them?

What is the national culture of Kenya?

How can we build a national culture?

5 Secularism and Religion

Gabriel Dolan

Article 8 of the Kenyan Constitution states briefly but unequivocally that There shall be no state religion, but no one can deny that Kenya is a very religious soci-ety. Traffic jams abound around most churches on Sunday morn-ings; Mombasa County has 300 mosques; just about everything from birthday parties to CDF meetings begin with a prayer.


Of course long before we get to Article 8 in the Constitu-tion, we find the first words in the Preamble are: We the peo-ple of Kenya ACKNOWLEDGING the supremacy of the Al-mighty God of all creation. Besides, the word Mungu is the first to appear in the National Anthem. Yes, Kenya is indeed a very overtly religious society but what does article eight say to followers of such diverse religions, sects and spiritualities?

Firstly the article is stating that Kenya has no privileged or preferred religion. It is also acknowledging that while all re-ligions are permitted the state machinery must not be allied in any way to any particular religion. This is what we call a secular state and secularism means that government institutions should remain separate from religious institutions. The state then must be seen to be neutral in terms of religion, neither overtly sup-porting nor advocating for irreligion. This is the principle and value that is easily enough grasped but what of its implementa-tion; how can we measure the level of its success?

As we struggle to balance the separation of state and re-ligion let us be mindful that many other countries face similar challenges even after centuries of working with democracy. The United Kingdom for example still has the Coronation Oath of 1688 whereby the Monarch swears to preserve the Protestant Faith as the established faith; the Indian government subsidises Muslim pilgrims to go on Hajj; many Church NGOs in Europe receive government assistance to do humanitarian work and Iran went in reverse converting from being a secular state to a religious one in 1979. The Arab spring has become a nightmare for Christians who have been forced to flee their homelands in droves while we hear regular stories of the suffering of Chris-tians in Pakistan under their blasphemy laws.

27Secularism and Religion

The notion of secularism originated in France where it was referred to as laicite which attempted to keep religion as a private affair in the name of building common citizenship and understanding. In July last year the European Court on Human Rights (ECHR) upheld the 2010 French law that banned the wearing of the burqa. To many this ruling was an affront. Its opponents claimed that freedom of religion had been replaced with freedom from religion and that the law was a direct assault on Muslim believers. The ECHR had already upheld Frances ban on headscarves in educational establishments, and its regu-lation requiring the removal of scarves, veils and turbans for security checks.

These are random examples from around the world but how can we learn from these experiences and avoid conflicts between religions and with the state here in Kenya? How do we foster the national values of inclusiveness, non-discrimination, and protection of the marginalised found in Article 10? How do we honour the right of everyone to freedom of conscience, religions, thought, belief and opinion as stated in Article 32 (1) of the Constitution? Are there any limits on the right to publicly worship, practise and teaching as envisaged in subsection 2 of the same article? Do we have suitable legislation to prevent dis-crimination on grounds of religion?

Put another way, I am suggesting that we should openly discuss these matters especially at this time with the rising suspi-cion and tensions that have resulted from the massacres in Man-dera and Mpeketoni. If social media is representative of current views in Kenya then there is every reason to be disturbed by both the ignorance and hatred between faiths.

This of course is not just a Kenyan problem but a global one. On January 7th this year, twelve people were gunned down


in Paris in an apparent revenge assault on the satirical magazine Charlie Hebdo. The weekly French magazine unapologetically defends its right to ridicule and cause offense. That right was de-fended by many who quoted Voltaire who said, I disapprove of what you say, but I will defend to the death your right to say it.

In this heinous assault, the justification given was that the magazine had deliberately insulted Mohamed and the Islamic faith. Many Muslims were also offended by the content but took no such reckless action. In the aftermath a demonstration of support for the magazine entitled Je Suis Charlie attracted mil-lions on the streets of Paris and yet there were no placards raised that read Je Suis Musulman (I am a Muslim). This protest in support of the magazine however isolated the five million Mus-lim community in France who were made to feel as if they were all responsible for the slaughter.

Of course there is a clash of values and cultures at stake too. The right of freedom of expression must be balanced with patience, respect and tolerance. In other words, we must not overstep the bonds of civility and harmony and we must cer-tainly distinguish between the right to express and the rightness of what we speak. Our right to insult may well be interpreted as hate speech in other cultures.

Before the 2013 elections I worked with a team whose task it was to monitor and record hate speech in the election cam-paigns. Soon that team moved to places of worship where one mega church in Bamburi that has been visited by the President and his deputy spewed hatred for the Islamic faith and its politi-cians. Recordings of roadside preachers attacking the Christian faith were also made and both sets presented to NCIC and CID but no prosecutions followed.


There is a great hesitation by law enforcement officials in Kenya to investigate and prosecute religious leaders even when they violate the countrys laws. This impunity in turn can lead to further abuses and corruption. Have we misunderstood the sep-aration of religion and state to mean that religions are not un-accountable for their teachings, tithe and leadership? Religious leaders frequently appear to be privileged, above the law even when they preach incitement and rip off their faithful. Why are churches allowed matangas and keshas with microphones that keep the neighbourhood awake?

The State of course is aware of the power and influence of religion on society and is comfortable to share platforms and frequently beds with their leaders. Politicians are still the major attraction at fundraisers and church functions. They bring the media and the lolly.

Recently the Deputy President attended the consecration of a Catholic Bishop and promised the prelate a new 4WD vehicle from him and his boss. He also promised to donate two million shillings towards the construction of a retirement house for his predecessor. Well there is a no such thing as a free lunch or car. There is a payback price of course in that the same politicians are given the microphone to greet the people and buy the silence of the religious leaders when matters of integrity are at stake.

Few believe that religions remain the conscience of Kenyan society today. In fact they are very much part of the establish-ment, rarely rocking the boat on national issues but confining themselves to addressing sectarian issues that are of particular interest or benefit to their own denomination.

The boundaries between religion and the state are also be-coming less and less marked and that is a very unhealthy trend.


The NCCK on November 26th last year issued a statement enti-tled Christians demand real action from government and Muslim Lead-ers. The Church body bluntly stated that they have no trust in Muslim leaders press statements dissociating themselves from violence against Christians and warned Muslims live every-where in Kenya and in some places are only a handful. They proceeded to state that they would support any referendum that would give more powers to the government to improve security and wanted the immediate implementation of Anti-Terrorism laws which they claim Muslim leaders oppose. Their language was at best inflammatory, emotive and unhelpful at this time.

While Christians have become the target of the violence Al Shabaabs aim is to set the faiths in conflict and the NCCK seem to be falling headlong for their bait. Something more is needed that brings faiths together in a movement of cohesion, respect and nation building. The approach of NCCK gives the impression that Christians have a special place in Kenya but in the process Muslims are being alienated and depicted as a threat to the security of the state.

Real religion focuses on the Common Good on what will benefit all Kenyans. It goes beyond the immediate needs of any faith and seeks only to serve, inspire and unite the whole popu-lation. When religion becomes sectarian only concerned with its own welfare it loses meaning and soon may be dismissed as irrelevant.

Secularism does give a lot of space for religion in the mar-ket place but it must use that space to address people of other faiths too and promote that common good of the nation. That is the irony for religions that they are most effective and respect-ed when they care about the welfare of those outsider their own flock. That is secularism at its best.


At a time when the opposition is in tatters, the 2010 Con-stitution is under assault and every day brings new revelations of corruption, the major religions remain on the margins with nothing of substance to say. They all appear just as helpless and hopeless and resigned to insecurity, a culture of corruption and the polarisation and ethnicisation of politics as the rest of the population.

Faiths seem unable to transcend the morass of public life and unable to boost the morale or morals of the nation. They may give light relief and encouragement on a weekly basis to their congregations but offer no clear way forward towards a more just and democratic society. But should they rediscover their common vision and mission then they have much to con-tribute to Kenyan public life.

Things to think about How much do you know about the religions of people in

Kenya, other than your own?

Do you think it is important to understand more?

How could you learn more?

Are there things about your religion (if you are religious)

that you think may annoy or upset people who have other religious beliefs?

What can be done to reduce this annoyance or upset?

List the moral beliefs that you think that all the religions in

Kenya share.

6 Democracy:

The primary constitutional valueYash Pal Ghai

Democracy is the foundation of the constitution. Ar-ticle 1 says that All sovereign power belongs to the people....,and the people may exercise their sov-ereign power either directly or through their democratically elected representatives. Institutions to which people have

33Democracy: The primary constitutional value

delegated their powers (principally legislatures, executives and the judiciary) must perform their functions in accordance with the constitution. These provisions define the characteristics of Kenyas democracy: acknowledging the sovereignty of the peo-ple, specifying that this power must be exercised in accordance with the constitution, and providing for the allocation of ma-jor state powers. The study of Kenyas constitution is necessary to understand the nature of Kenyas democracy; the values and framework of our democracy cannot be derived from academic literature or the practices of other. Ours is not a majoritarian de-mocracy (in which the majority view would necessarily prevail) nor does it give all powers to state organs. It is best described as peoples democracy, participatory democracy and consti-tutional democracy.

Unlike the older type of democracy which was focused largely on elections to the legislature and/or the executive, Ken-yas democracy is geared principally to abiding by and achieving national values and principles. Perhaps in the older democracies desirable values were taken for granted, being embedded in soci-ety, which itself was assumed to be homogenousa nation, and it was not thought necessary to express them in the constitution. In Kenya we feel we cant take them for granted and they have to be reinforced by express constitutional provisions, listing them explicitly: national unity, rule of law, integrity in public life, equal and fair access to the state of all communities, gender, and re-gions, human rights, human dignity, social justice and sustaina-bility. And we provided for their enforcement, including specific powers given to individuals, groups and communities.

The second characteristic of Kenyas democracy is proce-dural, prescribing that state powers must be exercised in accord-ance with good governance, transparency, and accountability


and provides strong mechanisms to ensure that state institutions observe these values, including . peoples participation in policy making and legislative initiatives. Policy making by the state be-comes more complex than in the past.

And there is a third difference: older type democracy devel-oped gradually, reflecting changes and balance in society, while Kenyan democracy is imposed from above, not necessarily reflecting predominant current social values or organisation, through the constitution. I shall leave this issue of democracy from above for another occasion.

The scheme for democratisation is based on the assump-tion that a common identity of the people as Kenyans must rise above ethnic identities. Therefore the constitution both pro-motes and builds on common identity and national unity. Inevi-tably, therefore, the Kenya democracy is more complex than in nation-states with substantial social consensus.

Organisation of the state

The single most important provision for democracy is the restructuring of the state, dismantling the old centralised, single government. The foremost objective of devolution is to pro-mote democratic and accountable exercise of power and to give people substantial degree of self-governance. Democracy is easier to promote if there are several units of power.

Institutions of democracy

State institutions, legislatures, executives and judiciary, and their structures, are similar to those in older democracies. But they must be representative of all communities. And the em-phasis is less on powers than on functions and responsibilities,


and on the purposes for and the manner in which, state power must be exercised. All powers must be exercised in accordance with the constitution. All major institutions must protect and develop the constitution and promote the democratic govern-ance of the Republic. They must be responsive to the concerns of the people and promote the peoples access to and facilitate their participation in the affairs of the institutions. The obli-gations placed on the president show clearly the objectives of democracy, including safeguarding the constitution, promoting national unity and the diversity of the people, human rights and fundamental freedoms and the rule of law. The constitution has a strong regime of fiscal management, addressing many prob-lems of corruption and inefficiencyand affects the conduct of all state organs.

Peoples direct powers

People exercise their sovereignty in a number of ways: as voters, sometimes also as candidates, through powers to recall legislators for poor performance or misbehaviour, by participa-tion in official policies, petitioning the legislature and partici-pating in its proceedings, initiating legislative proposals, and by marches and other forms of protestsand by protecting critical constitutional provisions against amendment.

Politics and elections

Elections to the legislature and the executive are the most visible sign of democracy. The constitution recognises the uni-versal right to vote as a human right. The right to stand for elections extends to independent candidates unlike in the pastthough the role of political parties remains central. Elections must be conducted by an independent commission in accord-


ance with internationally accepted rules for free and fair elec-tions. Malpractices, including bribes, are prohibited.

The constitution expects to achieve many objectives of democracy through the regulation of political parties. The aim is to move away from tribally based political to country wide parties, parties that unite and not divide the people, that focus on policies and not personal attacks on opponents, and are in-ternally democratic and accountable to their members, and able to spend only limited amount of money on campaigns. In this way the hope is that we would move away from petty tribal and corrupt politics.

Institutions of enforcement and accountability

An essential aspect of democracy is how its values are up-held. The constitution is particularly strong on this. The most important institution is the judiciary, which has the ultimate power to interpret the constitution, and to declare laws, con-duct of officials, and policies unlawful, and to protect peoples rights and freedoms. It has the power to give remedies against the government for breach of laws. Access to courts is easy and this makes the judiciary the most important ally of the people.

There are other institutions for accountability, particularly independent commissions and offices (for audit, implementa-tion of the constitution, protection of human rights, curbing the greed of parliamentarians and executive officers, investiga-tion of corruption, observance of the constitution). Their pri-mary task, according to the constitution, is protect the sover-eignty of the people; secure the observance by all State organs of democratic values and principles; and promote constitution-alism. Even the role of security forces is re-defined from being


oppressors of the people to their protectors (they must always comply with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms).

State of democracy: so far

We can see that the system of democracy is carefully thought out, in all its aspects. The record so far does not inspire hope that the rotten political and economic system that had de-veloped since independence has been dented to any significant degree (despite the valiant efforts of the judiciary and other in-dependent institutions). Devolution has had an uncertain start, infected from the beginning with the vices of the old regime. The first elections were deeply flawed (with massive violations of rules), political parties continue to be personal fiefdoms ex-ploiting tribalism, and corruption has outstripped all previous records (even of the redoubtable Jomo and Moi). The rich get richer, the poor poorer. Religious divisions have emerged with a vengeance. Ethnic conflict is just below the surface; national unity is neither on the agenda of the government or opposition. We remain the victims of tribalism and corruption. The govern-ment shows scant regard for the constitution. Most worrying of all, people have made little use of the instruments placed at their disposal to fashion a new political orderand have used their votes for expediency rather than rational reasons. The only hope is that they will take charge now.


Things to think about Did you vote at the last election (assuming you were quali-

fied to do so)?

How did you choose who to vote for?

Are you satisfied with the performance of the people you

voted for?

Will you vote for the same people next time?

If you are not satisfied with them, have you done anything

about it? What do you think is possible for the ordinary person to do about dissatisfaction (within the law?)

Would you ever vie for public office? If not why not?

How can the people influence the way people in public of-fice behave, apart from voting, or standing for office?

7 Public Participation:

Engaging Citizens in Policy MakingGrace Wakesho Maingi

I was recently on a popular morning radio show discussing devolution, its challenges and progress. Frustrations from the public on the lack of delivery of services coupled with increasing taxes took centre stage. In a bid to offer a solution I boldly asked the listeners to write a letter of complaint to their specific governor in order to highlight their grievances. The backlash I got was outstanding with numerous comments that a simple letter would not lead to any meaningful change leave alone a response from the county government leadership.

Public participation

Public participation, as defined in the Uraia Citizen Hand-book, is when citizens positively take action to be involved in the affairs of their own government or community. Public participa-tion is a key hallmark of the Constitution of Kenya 2010, which envisions that active public participation would lead Kenyans to achieve their aspiration of a government based on the essen-tial values of human rights, equality, freedom, democracy, so-cial justice and the rule of law. Public participation is a national principle. The Constitution instructs public servants to include citizens in the process of policy making. It provides citizens with the right to participate in the decision making process and other functions of national and county legislative bodies. Spe-cifically articles 118(1) (b) and 196 (1) (b) direct the national and


county legislatures respectively to facilitate public participation in its work. Article 119 (1) states that citizens have the right to petition Parliament to consider any matter within its authority.

A key ingredient of active and effective citizen participa-tion is access to information guaranteed by article 35. Parliament and the county assemblies are directed by articles 118(1) (a) and 196(1) (a) to hold public meetings and conduct their work in the full view of the people. Our parliament and county assemblies are required to ensure that they provide relevant information and environment for meaningful public engagement. This in-cludes, for example, publicising the holding of a county forum to discuss the county budget well in advance, through a medium that is accessible to most people (which means radio rather than newspapers) and providing relevant documents in advance.

Levels of participation

Public participation does not end with the provision of in-formation. National and county governments must actually con-sider the views of the people and take them into account. Public participation has been aptly analysed by Sherry R. Arnstein in terms of eight levels ranging from non-participation to citizen control. The lowest levels of citizen participation are manipula-tion and therapy where citizens are educated about or cured of their concerns or anxieties through, for example, political rallies, encouraging them to believe they are participating in governance when in fact they have no role in the process of decision-making.

The lower-middle levels of participation consist of inform-ing and consulting citizens, categorised as tokenism. The pri-mary objective of the power holder is to explain to, and to hear from, citizens on policies and decisions. Unfortunately these ac-tions will ultimately not affect the outcome of the governments

41Public Participation: Engaging Citizens in Policy Making

decision-making process. The upper middle level of citizen par-ticipation is placation where citizens provide advice during the deliberation process while the power holders keep the authority to make final decisions.

The highest levels of citizen participation reveal increas-ing degrees of citizen power particularly in the decision mak-ing process of government. The lowest of these is partnership which means that citizens can negotiate with power holders and thus the responsibility to make decisions is shared. The two highest levels are delegated power and citizen control. These two levels involve increasing degrees of citizen power over the decision-making process through such things as more seats on a committee or even full managerial authority.

In the case of Kenya, the Constitution contemplates con-sultation and participation at all levels, including the presidency. This reflects the fundamental constitutional principle, emphasis-ing the sovereignty of the people which may be exercised direct-ly or indirectly. However, during my interactions with various public servants at the county level on public participation, the constant complaint I have received is that even if steps are taken to organise forums for the public, they rarely show up. But Mark Funkhouser, mayor of Kansas City from 2007 to 2011, has been quoted as saying In my experience, citizens are not apathetic but they are rational. Give them an opportunity for meaningful engagement with others in their community about issues that directly affect them and their neighbours. . . and theyll show up. And the legitimacy and sustainability of government will be strengthened. I agree with him. If Kenyans knew that their par-ticipation in, for example, a community security meeting would mean that their views will be seriously considered and impact action, I believe they would attend and actively participate.


Kenyan experience

Various case studies documented by Uraia and the Institute for Economic Affairs (IEA) show how various county govern-ments have ensured public participation in the county planning processes. In mid-2013 Nandi begun the process of developing the Nandi County Integrated Development Plan (CIDP) with a launch and planning meeting in Kapsabet town. At the meeting one of the key things that was agreed upon was how the pub-lic consultations would be conducted. Sub-county forums were held and the local leaders, community radio stations and print media were used to mobilise the public. At sessions targeting persons residing outside the county there was active involve-ment of both public and private sectors. Laikipia County adopt-ed similar approaches during the development of its CIPD and also established a dedicated email address to receive wider public input.

A number of cases have been filed in the High Court of Kenya on the principle of public participation. My most nota-ble one is the April 2014 judgment on the Kiambu Finance Act 2013 where the constitutionality of the Act was challenged on a number of grounds including the lack of public participation. In that case Justice Odunga stated that public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of Constitutional dictatesIt is not just enough in my view to simply tweet mes-sages as it were and leave it to those who care to scavenge it.

Looking elsewhere

In Recife, Brazil participatory budgeting has been promot-ed by getting the citizens to vote on various issues and citizen bodies also to monitor the implementation of projects. Other

43Public Participation: Engaging Citizens in Policy Making

processes also involve school going children who participate in deciding what projects are undertaken in their schools and the city. The whole process has been described: the budget process has become a new meeting ground on which civil society, mu-nicipal authorities and the citys legislative branch are learning how to work together and assume collective responsibility for the future of the city. This not only broadens democracy; it also deepens democracy in daily life.

Back to my letter writing suggestion to the radio listeners, again I say it here - If we do not engage we cannot participate, if we cannot participate we cannot begin to cause a change. Let us give public participation a try, we have to begin somewhere.

Things to think about Have you attended any public meeting in your county about

the budget or other topic? If not, why not?

Does one of the following statements best reflect your own

attitude? Its really important for citizens to take an active inter-

est in what is happening in their country or area I like reading about politics, but I think that is just about

the intrigues of politicians; it doesnt really concern me. I tweet about my views; thats enough. Why bother? We cant make a difference anyway.

Why not work with a group of like-minded people to pre-pare a petition to Parliament, Governor or County Assem-bly about a topic that you feel strongly about? Make sure that you choose your topic carefully, and that you know who can do something about it, and that you follow up on the petition.

8 Separation of Powers, Checks and

Balances, and the Rule of LawYash Pal Ghai

In this chapter, we look not at the virtues of individuals or governments, but of systems of government. In recent months there have been major conflicts between state in-stitutions, quarrels between Governors and Senators, the Senate and the National Assembly, the Executive and the National As-sembly, Governors and members of County Assemblies. There have been spats between the judiciary and the other state in-stitutions, while the judiciary has declared unconstitutional the acts both of the legislature and the executive. There is a real danger that if these antagonisms continue, there will be a total collapse of government institutions. Yet there is no excuse for squabbles. The constitution is clear as to their respective powers and responsibilities, and the relationship between them. These crises have arisen only because the protagonists have ignored or twisted constitutional provisions to pursue their political objec-tives and personal gains.

Three concepts

The constitution is based on three important and closely connected institutional virtues: separation of powers, checks and balances, and rule of law. The separation of powers refers to the division of state powers among two or more institutions. The objective is to prevent the oppression of people by the

45Separation of Powers, Checks and Balances, and the Rule of Law

concentration of power and its authoritarian or tyrannical use. Checks and balances refers to mutual control or scrutiny among institutions to prevent their abuse of powers. The doctrine of separation of powers says that different kinds of state functions should be vested in different organs and an organ should not usurp the functions of another. There is a degree of specialisa-tion: the legislature, representing the people, is primarily con-cerned with policy and laws, the executive, with administrative skills, is responsible for implementing laws and ensuring peace and order, while the judiciary, trained in the law and procedure has the ultimate responsibility for the interpretation of the con-stitution and laws, and their application to concrete caseseven the conduct of the president and legislators. Thus the separa-tion of powers does not say that an organ may not review the exercise or misunderstanding of the power of another organ in accordance with the constitution. Nor does it rule out consul-tations between different organs. In fact the objectives of the separation of powers cannot be achieved without linking it to checks and balances (some examples are given below).

The rule of law means that the powers of the institutions and the relationship among them are determined by the consti-tution and lawswhich must be observed strictly. The president is as much bound by the law as a hawker. The same idea is ex-pressed in the statement that no one is above the lawnot even, perhaps one should say, especially not, the president, whose abil-ity to abuse power is greater than any other persons. The knowl-edge of the constitution is therefore important so that members of all institutions operate within the powers granted to them, in accordance with stipulated procedures. However much the president dislikes a constitutional provision or a decision of a court, he or she has to respect and follow it.


The Constitutions conception of the separation and functions of power

What I have sketched above is an abstract picture of the interaction between the separation of powers and checks and balances. In order to understand its implications for the system of governance and relationship between different state organs, it is necessary to examine the orientation and provisions of the constitution. A close study of the constitution is necessary to understand the content and significance of these concepts and how they interact under this constitution. Some uses of power are prohibited, and some are obligatory. Often the procedure for doing something is specified (e.g., consultation and partici-pation). This approach acknowledges and increases the impor-tance of checks and balances as well as supervision over and accountability of state organs. It points also to the need to con-textualise the concept of the separation of power. Unlike older constitutional orders, the powers given to state organs are to be exercised not at the discretion of the organ, but in accord-ance with the objectives stipulated in the constitution. In many respects the older versions of the separation of powers do not fit the newer constitutional orders. The precise contours of the separation of power must be established not by reference to these older notions or the practise of other countries, but by the objectives, structures and logic of the constitution. Even in

Documents

Katiba Institute_National Values and Principles of the constitution.pdf