The challenges of constitutionalism in Kenya

  

Date Posted: 12/6/2012 11:41:25 AM

Posted By: Brendah Aroko  Membership Level: Gold  Total Points: 3317

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Constitutionalism is one of the most elusive term in the description of the situations in almost all states in Africa. Kenya falls under this category of states that are struggling to cultivate a constitutional culture and severe the attachment with their undemocratic past. African states have been said to be graves of beautiful constitutions, which when promulgated, raise the spirits of the citizens but always disappoint the world as they fail to bring the expected reforms.

Kenya is at that stage. The whole world is watching. As mentioned above many African states have had very progressive constitutions, the challenge is always in their implementation. For instance at independence the constitution that was enacted had the correct checks and balances, however, the political class was not comfortable with most of this provisions hence the subsequent frequent amendments for political expediency rather than implementation of the provisions.

Nonetheless, at independence, Kenya can be excused since the constitution was not derived from the citizens but out of negotiations between the Kenyan political elite and the colonial government . Recently, Kenya promulgated a new constitution, which is in fact lauded as one of the most progressive constitutions in the world. Added to that is the fact that majority of the citizens voted in its favor. Therefore, it is expected that the people will be more willing to be bound by it than before.

Uganda also offers an excellent example of how implementation can be sabotaged. It enacted its constitution in 1995 after a really troubled past, but currently the world can only talk of disappointment. The most conspicuous of all is the arbitrariness in the exercise of the presidential powers. It therefore shows that the leaders are more concerned about constitutionality rather than constitutionalism.

So, what is constitutionalism? What are the challenges in achieving it?

What the role of the ministry of justice in achieving it through the implementation of the constitution? These are the questions that the paper seeks to answer within the Kenyan context.
Constitutionalism involves a lot of historical and philosophical discourse. Nevertheless, it should be noted that the key meaning of constitutionalism is, the actions by the government and the people in a state should be in accordance with the letter and spirit of the constitution.
Ruth Gordon once wrote that, “Constitutionalism is the end product of social, economic, cultural and political progress; it can become a tradition only if it forms part of the shared history of a people”.

Thus it seems that constitutionalism is a culture developed over time and binds the people and the government, which promotes democracy, rule of law, respect for human rights and good governance. An example has been cited of how citizens in the developed democracies e.g. the United Kingdom and United States of America do stop for the in traffic if the lights turn red. They will do this irrespective of whether there is a police person all not.

The example above shows how a culture of respect to the law influences the behavior of the citizens. In contrast most of the states that have not developed such a culture among their citizens, experience a state of lawlessness despite the fact that the law provides for a certain conduct. They may fail to stop in the traffic unless the police officer is around and paying attention to them.

Unfortunately, this is the situation in almost every aspect of governance in Africa, Kenya included. The people have their own culture that determines their conduct irrespective of whether the law prescribes the contrary or not.
Some of the African scholars have seen it as a challenge and describe such conduct as influenced by an ‘unwritten constitution’ that runs against the written constitution in a state. They have even argued that to some extent the unwritten constitution of a state tends to supplant the written provisions of such state.

There has been a lot of philosophy attempting to explain the above mentioned situations. How would a legitimately promulgated constitution be disrespected at will by the very people who voted for it? How can the rules in the constitution bind peoples’ conscience and hence promote a culture of constitutionalism? The following section attempts to deal with questions from the philosophical point of view.

Philosophical background
John Locke and Thomas Hobbes are among the few of philosophers who interrogated the concept of the constitutionalism, though they never addressed it directly. They conceptualized the idea of the social contract.

A social contract, they argued, is the agreement between the government and the governed where the governed cede some of their rights to the government in exchange for protection, peace and order. This means that both parties to such a contract should not act against their agreement in the contract, which in the case is the constitution.

However, various questions arise as to the relationship between the constitutional culture and the social contract. Common contracts always get breached therefore, is it so unique that the social contract cannot also be breached easily, considering the nature of the relationship between the parties and the distinction between them.

Another issue concerns the perception of the citizens as to their role in the contract. do they understand their role so that they can acquire ownership of the constitution as well as the implementation process? Unfortunately, most citizens do not understand their roles. in such a case the ministry of justice, national cohesion and constitutional affairs has the role of developing ways to create awareness among the citizens on their role in the realization of constitutional principles.

The challenge in the realization of constitutionalism has also been attributed to the inability of the laws to bind the conscience of the people. St Thomas Aquinas supported this argument that the laws made in a state including the constitution must bind the conscience of the people for them to be obeyed.
Some people may argue that the fact that the constitution is passed through a referendum is sufficient proof to its acceptability and hence they should be no hitch in its actualization. Nevertheless, the process of implementation is a rough and long journey that is driven not only by the high spirits of citizens at the promulgation but the reality of the statutory laws to be enacted and behaviors to be changed.

For the constitution to bind the conscience of the people there has to be a process of sensitization aimed at reforming and transforming the culture of the people. This is done both through legislation, policy formulation, institutional reforms and political good will by the political leaders. The ministry of justice, national cohesion and constitutional affairs therefore becomes essential as is mandated with the overall responsibility for the formulation of legal policy among other functions, to ensure that this process runs smoothly.

Jean-jacques Rousseau (1712-1778) who by extension elaborated on the social contract theory argued that, the law has to be enacted in accordance with the general will so that every person wills what the law says. This will mostly submit to the unwritten constitution that will in turn make it easier for the people to exercise their constitutional culture without violating the constitution.
The question then lingers, since the constitution represents the general will then why is it proving challenging to implement it? Though there may be various answers to the question, one of them is the difference in the interpretation by various people, resistance to change among other challenges.

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