Faulty approach of Select Committee to constitution

Yash Ghai

Among the many failings of the Select Committee on the constitution review is the miserable report that accompanies its draft constitution. One of the strengths of the Kenya process has been the requirement that the primary organs of review publish a report on the way they conducted their work, the consultations with, and the views of, the people and the justifications of the recommendations. The CKRC and Bomas published several reports on their work which have assisted the people to understand constitutional issues at stake and reasons for recommendations. They greatly facilitated public debates—and have now become valuable historical documents. Likewise, the CoE’s preliminary report helped in understanding the reasons behind the Harmonisation Draft. The exception was the Wako draft, prepared by a cabal of politicians in considerable secrecy as has the SC.

The Select Committee’s report will not serve any of these purposes, least of all enabling Kenyans to understand and debate the rationale of the recommendations. Only 7 of its 13 pages are devoted to the business at hand, and even these are exceedingly parsimonious in analysis or justification. This is unforgivable in view of the mutilation that the SC has wreaked on the CoE’s draft. It does not explain its mandate, but baldly - and inaccurately - asserts that it is to build consensus on the whole of the CoE draft.

The report says not a word about its philosophical approach to the constitution, but its phobia about values and policy come through. It has reduced the sometimes inspiring language of the CoE draft, advancing the national vision, to one sentence, boring like a laundry list.

Nowhere does the SC give any reasons for its deletions and revisions. Many deleted provisions represent wide national consensus, having first appeared in the CKRC draft, endorsed at Bomas, and adopted in the Wako draft. It contents itself with statements like that it has “made changes it considered necessary” or “removed details which could be provided through legislation”. It has removed references to national culture, because its view is “that culture need not be entrenched in the constitution”. In its zeal to reduce the size of the constitution, it has excised important provisions, including those related to various commissions. Yet, oddly, it has cut and pasted a long, wordy, article on the public service commission from the existing constitution. And, misleadingly, it asserts that except for minor drafting differences, it has adopted the chapter on citizenship which “broadly remained the same in all the Draft Constitutions”.

The actual drafting done by the SC has introduced yet another style, adding to the variety that has accumulated from time of the CKRC draft. It is not clear what attention the SC gave to the drafting itself, an essential component of preparing the constitution, but certainly the task of the CoE in tidying up the draft, deleting repetitions, introducing precision of language where there are vague and broad formulations, is the more daunting—and urgent.

Reading the report and the draft constitution, my overwhelming impression is that the SC has little understanding of the functions of a constitution. Its slash and burn policy is uninformed by an understanding of what must be in the constitution and what may be relegated to legislation. It has even less understanding of dynamics of, and relationships between, institutions and procedures. Otherwise it would not be claiming so loudly and emphatically that the presidential system it has proposed is grounded in strong checks and balances. The senate has been rendered toothless. It has downgraded the regime of human rights and institutions of accountability, the role of civil society, abolished the ombudsman. By weakening provisions on the vetting as well as future appointment of judges, it has diluted a critical safeguard against abuse of executive power. On the contrary, it has given the judiciary greater discretion than under the CoE draft to interpret the scope of rights, completely misconceiving both the nature of rights and the importance of constitutional guidance on these matters.

The SC has little schooling in principles and effectiveness of representation, as is all too obvious from the elections to and composition of the legislative bodies, particularly fending off pressures for female representation by lumping women into a powerless senate. The disdain it has shown for the views of the public views and opinion of experts is truly astounding.

The driving force of the SC draft is the aggrandisement of politicians. The number of legislators is greatly expanded. The number of appointments requiring the approval of the National Assembly has increased, giving further scope for inter-party deals at the expense of fairness and merit. Parliament will take responsibility for ensuring implemention of the constitution, instead of an independent, expert commission. Chairs of assembly committees will enjoy the status and perks of ministers. The parliamentary commission which has been so sedulous of MPs’ financial and other material interest is retained, while other important commissions have been removed. To top it all, the quorum for the Assembly and the Senate has been reduced to absurdly low levels, so that MPs may enjoy the perks of power but are not bound by its responsibilities.