Post by Sang on Sept 16, 2005 6:53:08 GMT 3
The Supreme Law
The constitution should establish an immortal humanist foundation.
The constitution is the supreme law of the land which supercedes all other laws and on which other democratic institutions revolve. In essence, it is the superior law that defines the way in which people should be governed. The constitution is the act of the people constituting a state. It is the body of elements to which one can refer and quote from and which contains the principles of which the government shall be established, the manner in which it shall be organized, and the powers that it shall have. The constitution must follow realities, and not ideologies or religious beliefs. A constitution that is supposed to function must conform with a set of conditions applicable and relevant to the society that it is supposed to serve.
The constitution is a human document that is supposed to preserve all the people of the land. Although the constitution is supposed to endure for ages, it is also important to recognize that it is not static. It is elastic as it is progressive. It is alive and subject to updating and reviewing in accordance with the times and circumstances. It is like a river winding its way through valleys, continuously cutting new channels. The constitution must also embody traditionalism and culture of the people that it is supposed to protect and preserve. It must emanate from specific characteristics of society. A constitution of a state should be independent, although there could be comparative references, but the constitution of each country should be unique, independent, original and specific to that particular country. The constitution should never be wholly imported from outside. It is important that people within the state agree to the form of the constitution which would suit all the people, all the groups, all the communities within the state while recognizing those inalienable rights of each person and every group which include the right to life and liberty.
The old Athenian principle of representation would best be applied when deciding who should take part in the construction of the constitution. The final federal constitution of the United States of America was written and signed by delegates who represented the 13 states that then formed the federal government of the United States. Our present constitution was negotiated by representatives from the country’s constituencies and also special delegates who represented the various racial communities.
There is nothing like a model or ideal constitution. The constitution is not intended to serve a preconceived political agenda., but is supposed to build structures that would establish immortal humanist foundations. It is therefore important that people of this country try to frustrate and discourage attempts by elitist, affluent, professional, aristocratic or other recognized groups to monopolize or hijack the preparation of the constitution. It is unfortunate that these groups are active in this country almost to the extend of writing a constitution that will tend to favor their own affluent groups. The constitution should be seen to protect all the people regardless of class. The supremacy of class or a class struggle must not be seen to be the issue when we frame our supreme document.
People must reason with each other and their different sentiments must be discussed fully with the hope of reaching an agreeable solution and compromise between all the people. These discussion should iron out the existence of opposing forces with the hope of integrating people with specific geographical, territorial, cultural, traditional and historic differences. It is through dialogue and discussion that some accommodation should be reached between integrative and disintegrative forces. It could only be achieved by fully recognizing the need for unity while accepting the fact that there is always diversity among cultural and ethnic groups.
It is a fact that Kenya is composed of 42 tribes with different languages and diverse cultures and traditions. It is also a fact that our colonizers never attempted to create a homogenous national society in this country. The policy of divide and rule was perpetrated to the utmost by recognizing the clan, sub-clan, and the tribe among the Kenyan communities. Our diverse system must be recognized when it comes to the writing of the constitution but our diversity should not be a source or a basis of disintegration. It should be a basis for unity. It is therefore important to have frank, open discussions between representatives of these communities in order to bring in order to bring up to the surface the disparities in their social and political structures. One of the American founders proclaimed a fundamental maxim that rested on common sense, and which became one basis of American constitutionalism. “All men are, by nature, equal and free: no one has a right to any authority over another without his consent; all lawful government is founded on the consent of those who are subject to it. This rule is founded on the law of nature; it must control every political maxim.
CHURCH
Before I discuss the values of federalism, I want to touch on the involvement of the church in framing our constitution. Right now, there is a strong push by the church to take centre stage in the preparation of the constitution for this country. I have made statements in the past both in parliament and outside, to show that the church has no role at all in deliberating seriously on matters concerning the constitution. History tells us that in the medieval times and in the middle ages, the church was involved in the affairs o the state and this caused a lot of suffering and intolerance among the people. It was imperative, therefore, to separate the affairs of the church from those of the state and create a state of secular entity that was founded “by men for the benefit of men”. Even the American founding fathers recognized the importance of this separation and evolved a secularized state.
Writing up the constitution is a secular exercise and the churches should primarily confine themselves to spiritual matters. We have 800 religious sects in this country, not to mention the powerful Muslim groups. Even if we were to allow a representative from every religious sect plus other legally recognized representatives of the people, we would have to move the venue from a conference hall to Uhuru Park – where a mob would be deliberating on the constitution. It would be a mobocracy, not democracy. Even if the number would be reduced, what criteria of accreditation would be used to allow the representatives of certain religious sects to take part n the framing of our constitution?
It is important for the churches to know that, by trying to get themselves involved, they would be confounding an already confounded situation. Democracy has no religion. Spiritual values and beliefs would have no place in the affairs of state. History has confirmed that attempts to legislate or to give constitutional recognition to religious-based issues have perpetrated more evil than anything else in the history of mankind. If we are to progress in this constitutional exercise, we must separate church from state.
REFERENDUM.
There have also been a lot of discussions on conducting a referendum as a democratic system of deciding on certain issues. In the federal system of government, the state, the province, the regions, would legally have their own constitution and a degree of independence and autonomy. If the referendum affects the basic and fundamental rights of the people within that state or province, then that state or province will have a right either to ratify or not to ratify the proposal within their province or state. If the referendum is conducted to decide on issues that are basic and fundamental, like those affecting land use, then there is a likelihood of special groups and minorities being disregarded, and this could result in outright oppression and violation of their rights.
In no way is democracy identical to unqualified majoritarianism. The federal system of government will put checks and controls to negative, naked and brutal effects of majoritarianism.
LAND.
It cannot be over emphasized that land and ownership are a most important issue in the third world. Conflicts have erupted in most parts of the world because of land claims and counter-claims. It is very important to address the issue of land in Kenya because most conflicts in the history of this country have arisen from the land issue. Nearly all tribes in this country – the Masaai, the Taita, the Kamba, the Kikuyu, and the Nandi – have fought battles with our colonizers over land. Land, after all is the basis for survival, and the economies of most African ethnic groups are dependent on it; consider that more than 80 per cent of the people in the third world are dependent on the land for their livelihood. So, to minimize the importance attached to land is nursing a time bomb. It is therefore a very important issue. In fact, it is the principle issue in any constitutional framework. I am not only saying this because of the Maasai community, but I think it also applies to all other ethnic groups. It is also important that community rights to land and those of special groups be recognized in areas where the people are underdeveloped and
marginalised for historical reasons that are not for their own making.
In most areas of Kenya, land is still held communally, especially among the pastoral communities. Usually, they would have their own culture and institutions through which they exercise authority over land and its use. I want to emphasize the fact that those rights of the community must be taken into account. One human rights activist was imprudent enough to say that the Maasai, before the advent of colonialism did not own land. That is tantamount to saying that we did not exist and our land was un-owned. The historical fact is that the Maasai owned and controlled the major part of the central region of East Africa. It is the other way round. While we held total possession and control of these lands,, the other people, including the ethnic groups from where this lawyer comes, were either hiding in the hills or in caves. The Maasai were the unchallenged lords of the East African steppes. If we did not own any land, why did we lose men and livestock during the forceful removal of our people from the Central Rift? What were we fighting for? If we had no land, why did the British sign the two agreements with the Maasai leaders? As a matter of fact, unlike the community where this lawyer comes from, we were a sovereign nation, and this was an agreement between two sovereign states. Our nation, was well established with democratic institutions including a supreme council of elders as a parliament with orderly cultural and traditional norms, and we had the most powerful, well organized military machinery in the East African region that enabled the Maasai community to even stop slave caravans from moving through central Kenya and to divert them to the Ujiji route to Uganda. To say that we did not own any land is lack of common sense and basic intelligence. I want to repeat again that some communities have had a communal system of land tenure, which has obvious advantages for the communities. This communal ownership must also be regarded and protected and strongly safeguarded as rights to private property.
FEDERALISM
While the British, through Magna Carta is a mother of parliamentary democracy, the United States of America is the father of federalism. We do not have to look into the details of the American federal constitution to understand that the pilgrim fathers and their ancestors were determined to be free as soon as they landed on the East Coast of continental USA. Their founding fathers were determined to remain free, and gave to the world a legacy of liberty and freedom. The concept of the American federal constitution was revolutionary and republican.
The system of federalism is simply empowering the citizens at the grassroots level to be able to make decisions that affect their daily lives. Devolution of powers and the system of localism have been found to be popular throughout the world. The American federalist constitution became a guide to all or most of the constitutions that were constructed on this world. It is believed that democratic ideals supported by the federal systems of government contributed to the defeat of fascism fifty years ago and the recent collapse of communism.
There are about 10 industrial western states that have adopted the federal systems of government. These includes the US, Canada, Germany, Belgium, Spain, Australia, Austria, New Zealand, Switzerland, not to mention India, and Nigeria and now Ethiopia. Millions of these people, both in the west, and in Asia and Africa, have chosen the federal system of government because they believe that it sustains and guarantees freedom and liberty of the people. It is also the most popular and appropriate system of government when it comes to devolution of powers and empowering citizens to make decisions that affect their social, political and economic well being at the grassroots level. The present constitution of the Ethiopian republic confirms this philosophy of federalism. In fact, the Ethiopian constitution has identified ethnic groups as constitutional entities that should be given a degree of autonomy and alas, even the option to leave the confederation if they felt that it was against their interests.
I have always made my position very clear in the past that I am a federalist and have been thoroughly influenced by philosophy of the founding fathers of the American nation; their wisdom, their determination, to be free and to bequeath to the world the federal constitution that has not only endured for the last two-and-a-half centuries, but which might last forever. In this write-up, I wanted to avoid the catchword called “majimbo”; although federalism, regionalism and Majimbo literally mean the same thing - giving more and more power to the people. The word Majimbo in the eyes of the Kenyan public has been defamed and abused.
CONCLUSION
There is a definite shift by the modern states to federalism. Federalism is an essential component for a democratic government. In fact, it has been asserted that, where strong federal structures have been erected, conflicts have been avoided. The federal constitution supports the separation of powers as well as the devolution of power. This devolution does not necessarily create a process of disintegration, but instead it cements a policy of interaction among the constituent components of the state for mutual compromise and co-operation. It is perceived that the decentralization of powers will bring transparent decision-making closer to the citizens.
Hon William ole Ntimama, MP
Weekly Review, June 16, 1995
The constitution should establish an immortal humanist foundation.
The constitution is the supreme law of the land which supercedes all other laws and on which other democratic institutions revolve. In essence, it is the superior law that defines the way in which people should be governed. The constitution is the act of the people constituting a state. It is the body of elements to which one can refer and quote from and which contains the principles of which the government shall be established, the manner in which it shall be organized, and the powers that it shall have. The constitution must follow realities, and not ideologies or religious beliefs. A constitution that is supposed to function must conform with a set of conditions applicable and relevant to the society that it is supposed to serve.
The constitution is a human document that is supposed to preserve all the people of the land. Although the constitution is supposed to endure for ages, it is also important to recognize that it is not static. It is elastic as it is progressive. It is alive and subject to updating and reviewing in accordance with the times and circumstances. It is like a river winding its way through valleys, continuously cutting new channels. The constitution must also embody traditionalism and culture of the people that it is supposed to protect and preserve. It must emanate from specific characteristics of society. A constitution of a state should be independent, although there could be comparative references, but the constitution of each country should be unique, independent, original and specific to that particular country. The constitution should never be wholly imported from outside. It is important that people within the state agree to the form of the constitution which would suit all the people, all the groups, all the communities within the state while recognizing those inalienable rights of each person and every group which include the right to life and liberty.
The old Athenian principle of representation would best be applied when deciding who should take part in the construction of the constitution. The final federal constitution of the United States of America was written and signed by delegates who represented the 13 states that then formed the federal government of the United States. Our present constitution was negotiated by representatives from the country’s constituencies and also special delegates who represented the various racial communities.
There is nothing like a model or ideal constitution. The constitution is not intended to serve a preconceived political agenda., but is supposed to build structures that would establish immortal humanist foundations. It is therefore important that people of this country try to frustrate and discourage attempts by elitist, affluent, professional, aristocratic or other recognized groups to monopolize or hijack the preparation of the constitution. It is unfortunate that these groups are active in this country almost to the extend of writing a constitution that will tend to favor their own affluent groups. The constitution should be seen to protect all the people regardless of class. The supremacy of class or a class struggle must not be seen to be the issue when we frame our supreme document.
People must reason with each other and their different sentiments must be discussed fully with the hope of reaching an agreeable solution and compromise between all the people. These discussion should iron out the existence of opposing forces with the hope of integrating people with specific geographical, territorial, cultural, traditional and historic differences. It is through dialogue and discussion that some accommodation should be reached between integrative and disintegrative forces. It could only be achieved by fully recognizing the need for unity while accepting the fact that there is always diversity among cultural and ethnic groups.
It is a fact that Kenya is composed of 42 tribes with different languages and diverse cultures and traditions. It is also a fact that our colonizers never attempted to create a homogenous national society in this country. The policy of divide and rule was perpetrated to the utmost by recognizing the clan, sub-clan, and the tribe among the Kenyan communities. Our diverse system must be recognized when it comes to the writing of the constitution but our diversity should not be a source or a basis of disintegration. It should be a basis for unity. It is therefore important to have frank, open discussions between representatives of these communities in order to bring in order to bring up to the surface the disparities in their social and political structures. One of the American founders proclaimed a fundamental maxim that rested on common sense, and which became one basis of American constitutionalism. “All men are, by nature, equal and free: no one has a right to any authority over another without his consent; all lawful government is founded on the consent of those who are subject to it. This rule is founded on the law of nature; it must control every political maxim.
CHURCH
Before I discuss the values of federalism, I want to touch on the involvement of the church in framing our constitution. Right now, there is a strong push by the church to take centre stage in the preparation of the constitution for this country. I have made statements in the past both in parliament and outside, to show that the church has no role at all in deliberating seriously on matters concerning the constitution. History tells us that in the medieval times and in the middle ages, the church was involved in the affairs o the state and this caused a lot of suffering and intolerance among the people. It was imperative, therefore, to separate the affairs of the church from those of the state and create a state of secular entity that was founded “by men for the benefit of men”. Even the American founding fathers recognized the importance of this separation and evolved a secularized state.
Writing up the constitution is a secular exercise and the churches should primarily confine themselves to spiritual matters. We have 800 religious sects in this country, not to mention the powerful Muslim groups. Even if we were to allow a representative from every religious sect plus other legally recognized representatives of the people, we would have to move the venue from a conference hall to Uhuru Park – where a mob would be deliberating on the constitution. It would be a mobocracy, not democracy. Even if the number would be reduced, what criteria of accreditation would be used to allow the representatives of certain religious sects to take part n the framing of our constitution?
It is important for the churches to know that, by trying to get themselves involved, they would be confounding an already confounded situation. Democracy has no religion. Spiritual values and beliefs would have no place in the affairs of state. History has confirmed that attempts to legislate or to give constitutional recognition to religious-based issues have perpetrated more evil than anything else in the history of mankind. If we are to progress in this constitutional exercise, we must separate church from state.
REFERENDUM.
There have also been a lot of discussions on conducting a referendum as a democratic system of deciding on certain issues. In the federal system of government, the state, the province, the regions, would legally have their own constitution and a degree of independence and autonomy. If the referendum affects the basic and fundamental rights of the people within that state or province, then that state or province will have a right either to ratify or not to ratify the proposal within their province or state. If the referendum is conducted to decide on issues that are basic and fundamental, like those affecting land use, then there is a likelihood of special groups and minorities being disregarded, and this could result in outright oppression and violation of their rights.
In no way is democracy identical to unqualified majoritarianism. The federal system of government will put checks and controls to negative, naked and brutal effects of majoritarianism.
LAND.
It cannot be over emphasized that land and ownership are a most important issue in the third world. Conflicts have erupted in most parts of the world because of land claims and counter-claims. It is very important to address the issue of land in Kenya because most conflicts in the history of this country have arisen from the land issue. Nearly all tribes in this country – the Masaai, the Taita, the Kamba, the Kikuyu, and the Nandi – have fought battles with our colonizers over land. Land, after all is the basis for survival, and the economies of most African ethnic groups are dependent on it; consider that more than 80 per cent of the people in the third world are dependent on the land for their livelihood. So, to minimize the importance attached to land is nursing a time bomb. It is therefore a very important issue. In fact, it is the principle issue in any constitutional framework. I am not only saying this because of the Maasai community, but I think it also applies to all other ethnic groups. It is also important that community rights to land and those of special groups be recognized in areas where the people are underdeveloped and
marginalised for historical reasons that are not for their own making.
In most areas of Kenya, land is still held communally, especially among the pastoral communities. Usually, they would have their own culture and institutions through which they exercise authority over land and its use. I want to emphasize the fact that those rights of the community must be taken into account. One human rights activist was imprudent enough to say that the Maasai, before the advent of colonialism did not own land. That is tantamount to saying that we did not exist and our land was un-owned. The historical fact is that the Maasai owned and controlled the major part of the central region of East Africa. It is the other way round. While we held total possession and control of these lands,, the other people, including the ethnic groups from where this lawyer comes, were either hiding in the hills or in caves. The Maasai were the unchallenged lords of the East African steppes. If we did not own any land, why did we lose men and livestock during the forceful removal of our people from the Central Rift? What were we fighting for? If we had no land, why did the British sign the two agreements with the Maasai leaders? As a matter of fact, unlike the community where this lawyer comes from, we were a sovereign nation, and this was an agreement between two sovereign states. Our nation, was well established with democratic institutions including a supreme council of elders as a parliament with orderly cultural and traditional norms, and we had the most powerful, well organized military machinery in the East African region that enabled the Maasai community to even stop slave caravans from moving through central Kenya and to divert them to the Ujiji route to Uganda. To say that we did not own any land is lack of common sense and basic intelligence. I want to repeat again that some communities have had a communal system of land tenure, which has obvious advantages for the communities. This communal ownership must also be regarded and protected and strongly safeguarded as rights to private property.
FEDERALISM
While the British, through Magna Carta is a mother of parliamentary democracy, the United States of America is the father of federalism. We do not have to look into the details of the American federal constitution to understand that the pilgrim fathers and their ancestors were determined to be free as soon as they landed on the East Coast of continental USA. Their founding fathers were determined to remain free, and gave to the world a legacy of liberty and freedom. The concept of the American federal constitution was revolutionary and republican.
The system of federalism is simply empowering the citizens at the grassroots level to be able to make decisions that affect their daily lives. Devolution of powers and the system of localism have been found to be popular throughout the world. The American federalist constitution became a guide to all or most of the constitutions that were constructed on this world. It is believed that democratic ideals supported by the federal systems of government contributed to the defeat of fascism fifty years ago and the recent collapse of communism.
There are about 10 industrial western states that have adopted the federal systems of government. These includes the US, Canada, Germany, Belgium, Spain, Australia, Austria, New Zealand, Switzerland, not to mention India, and Nigeria and now Ethiopia. Millions of these people, both in the west, and in Asia and Africa, have chosen the federal system of government because they believe that it sustains and guarantees freedom and liberty of the people. It is also the most popular and appropriate system of government when it comes to devolution of powers and empowering citizens to make decisions that affect their social, political and economic well being at the grassroots level. The present constitution of the Ethiopian republic confirms this philosophy of federalism. In fact, the Ethiopian constitution has identified ethnic groups as constitutional entities that should be given a degree of autonomy and alas, even the option to leave the confederation if they felt that it was against their interests.
I have always made my position very clear in the past that I am a federalist and have been thoroughly influenced by philosophy of the founding fathers of the American nation; their wisdom, their determination, to be free and to bequeath to the world the federal constitution that has not only endured for the last two-and-a-half centuries, but which might last forever. In this write-up, I wanted to avoid the catchword called “majimbo”; although federalism, regionalism and Majimbo literally mean the same thing - giving more and more power to the people. The word Majimbo in the eyes of the Kenyan public has been defamed and abused.
CONCLUSION
There is a definite shift by the modern states to federalism. Federalism is an essential component for a democratic government. In fact, it has been asserted that, where strong federal structures have been erected, conflicts have been avoided. The federal constitution supports the separation of powers as well as the devolution of power. This devolution does not necessarily create a process of disintegration, but instead it cements a policy of interaction among the constituent components of the state for mutual compromise and co-operation. It is perceived that the decentralization of powers will bring transparent decision-making closer to the citizens.
Hon William ole Ntimama, MP
Weekly Review, June 16, 1995