Kenya: Don't waste the new constitution
The safeguarding role of civil society
Jill Cottrell Ghai and Yash Pal Ghai
2010-08-12, Issue 494
The media are behaving as if Mwai Kibaki and Raila Odinga won and William Ruto and John Njue lost. The media’s obsession with politicians, as so clearly manifested in their coverage of the referendum campaign, has obscured the hard work of civil society. The ideas and the struggle for reform were initiated and sustained by civil society while politicians were making their deals to stop reform. In the recent review process, the media ignored civil society’s admirable efforts to educate the people on constitutional issues.
It is unlikely that the new constitution will be implemented meaningfully without the continued engagement of civil society. Quite understandably, attention has so far focussed on what we may call the official side of implementation: constitutional provisions for transition, the timetable for new legislation and the commission for implementation. However, the people must involve themselves in implementation, in accordance with the spirit of the constitution, to promote people’s participation in public affairs.
The constitution sets out people’s participation as an important national value. It seeks to promote participation in a variety of ways: through promoting the right to government information; encouraging engagement in the legislative process; increasing the number of representative legislatures; litigating in the public interest; promoting formal petitioning for change of constitution or legislation; enabling the recall of MPs and protecting the right to form associations, the right to demonstrate and picket and the freedom of the media. The constitution envisages Kenyans not as passive people, voting every five years and then going to sleep, but as active and engaged citizens, contributing to policies and holding governments at various levels accountable. Central to the implementation of the constitution is ensuring, through public pressure, that state bodies respect the constitution and follow the law scrupulously. In the great jurisprudential debates that we hope will take place in the new supreme court, with new procedural rules, and in the learned judgments of the court, the articles and values of the constitution will develop and be absorbed by the government and the people.
The constitution does not necessarily imagine a hostile relationship between the state and the people, but rather of co-operation in the pursuit of national values. Thus it facilitates public minded persons or organisations to challenge, before the courts, laws or policies that violate individual or community rights. The constitution itself is a sort of primer on civic education, explaining the purposes and responsibilities of the state and the need for integrity in public life. It also sets out the accountability of the government to the people. The constitution speaks directly not only to state institutions but also to the people, imposing obligations on them to build a nation united on the foundations of democracy and the rule of law, human rights and dignity, social justice, the sharing of power and the participation of the people.
Our history shows that these values and objectives cannot be achieved without the people taking responsibility for the functioning of a democratic and just society. It is in this regard that civil society organisations, of many kinds, can play a critical role. Civil society goes beyond the traditional human rights bodies, which former President Daniel arap Moi used to deride and tried to restrict. These bodies, undoubtedly, will now have an increased role as the scope of human rights has expanded, and now includes socio-economic rights. Some of them have specialised in the fulfillment and enforcement of socio-economic rights, some on freedom of information, some on rights of minorities, others on gender equality and equity, rights of children, persons with disability, and most have been concerned with forms of affirmative action, including representation for inclusion in the public sphere. The constitution targets all these matters for implementation – and here these civil society organisations can provide invaluable assistance, at a time when the capacity within the government is limited.
There are other groups in civil society. The Association of Professional Societies in East Africa (APSEA) played a useful role in inducting its numerous members into the challenges facing the new constitution, cutting across various disciplines and sectors, and assisting their members to play a constructive role. Associations of business organisations have studied and endorsed the constitution, and must now play their part in fulfilling its goals, including forcing an end to corruption, in which presumably some at least of their members have been complicit. In many countries trade unions play a critical role in upholding the constitution through their political and economic work – something missing in Kenya after independence. The Kenya Land Alliance (KLA) has done valuable work on land issues, which now require careful attention as the land chapter is brought into operation through new legislation. And there are several think tanks whose research will be needed as the government and parliament develop policies on devolution, decentralisation and equitable sharing of financial and other resources.
It is important that the embrace of state and society does not become so close and cosy that civil society loses its autonomy and becomes an ally of the state in suppressing the people’s aspirations and the values of the constitution. Hopefully both sides of the divide have learnt the negative lessons of the collaboration post 2002 elections. For their part, civil society organisations must abandon the comforts of five star hotels and venture out to where knowledge and help is most needed: small towns and rural areas where people have little access to constitutional debates and to the text itself. And financial and other assistance must be provided to local organisations, like Bunge la Mwananchi – and the harassment they have been subjected to brought to an immediate end. There is little prospect of democracy and accountability if the vast majority of the people do not understand the constitution, what rights it gives them or how they can enforce them or the mechanisms now given to them to hold their MPs accountable.
Civil society must also promote two major objectives of the constitution: the move towards national integration, transcending tribes and races, and the fight against corruption. Civil society did well on the whole on the first count, including the efforts of Kikuyus for Change and the Kenyan Asian Forum, which helped the communities they focused on to reassess their place in the larger scheme of things – that which the constitution calls Kenyan patriotism.
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* Jill Cottrell Ghai is the co-editor of Marginalized Communities and Access to Justice.
* Yash Pal Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme (UNDP) in Nepal and a special representative of the UN secretary general in Cambodia on human rights.
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