Post by Opinion by Ndungu Wainaina on Sept 28, 2005 23:16:14 GMT 3
Lessons to learn in constitution making
By Ndung’u Wainaina
In 2000, the Zimbabwean people made a resounding No decision against their proposed new constitution which, in their understanding, did not seem to cater for their interests and were not fully involved in its development. The protagonists in the referendum were President Mugabe with his allies on one hand and civil society — opposition parties grouping around National Convention Assembly (NCA) — on the other.
President Mugabe had opted to constitute a handpicked commission that drafted a constitution for a minority political elite, contrary to the NCA-led group that pushed for a new constitution that reflected new political and socio-economic constitutionalism. The NCA module had much more relevance to the needs of the citizens and was ultimately owned by them. To achieve this, the NCA group pushed for the establishment of a democratically elected national constituent assembly independent from power politics and control by President Mugabe’s clique, just like what NCEC in Kenya has been agitating for since 1997.
NCA and its supporters conceived the idea that a people-driven constitution making process represented a more innovative and non-violent way of resolving the conflict between the state and the society. The argument here is that the new constitution must promote just and equitable society and therefore the demand should be a new constitution that broadly reflects, in terms of process and outcome, the will of the people, and not that of the political elite. This position degenerated into a war between President Mugabe and review organs on one hand and the NCA leadership on the other. NCA advanced the debate that power and political order can only be reconstituted through a democratic constitution making process. There was no compromise and subsequently the proposed new constitution was defeated in the referendum.
The argument that a No vote in Zimbabwe referendum gave President Mugabe a new lease of life is a dead one. The political elite in its own self-serving nature is notorious for killing democracy, monopolizing state power and sabotaging checks and balances. Indeed, it is known for creating a patron-client servitude regime, which is fed through corruption, human rights violations, ethnicity and destruction of citizens’ social and economic development.
The constitutional review debates assumed with time the powers, person and character of the executive since the political elite could not concede power and privilege to the people. Just like in Kenya, the character of the executive was at the center of the debate, which reduced the whole constitutional review project into a single item, namely presidential and executive powers. The acrimony in the Zimbabwe case has similarity with the Kenyan case. Those who opposed the referendum in the first place later became its strongest advocates. In the real sense, the constitution making in Zimbabwe and Kenya are showcases of raw power politics and the dilemma confronting countries attempting to write a new constitution within a framework of existing constitutional dispensation and in peacetime, and more so while on transition to democracy from autocratic rule.
However, the difference in the two countries is that Kenya had successfully transited to a new political dispensation, and thus had every opportunity to democratize the constitution making process. But in Zimbabwe, President Mugabe was still calling the shots. Moreover, the unresolved fundamental political issues are going to remain a cause of disagreement for many years. Secondly, the people of both countries are trapped in a yoke of the old and the unknown new, a situation wich denies them the opportunity to critique the body politic of their respective countries and determine its configuration.
In short, it is a lost moment to reach a historic political settlement and define real state reconstruction.
To the Zimbabwean people, the constitutional review was an opportunity to strengthen and protect human rights and good governance, achieve accountablity in government, promote and safeguard separation of powers, foster open and democratic political discourse, establish apolitical and high quality civil service and address corruption, human rights violations and social and economic injustices mor concretely.
Kenyans are contending with two options: to create a new dictatorship under new constitutional dispensation, or to engage the existing weaker one into a democratic constitutional making project. In fact, half-bread arguments — Wako draft supporters in Kenya — are more dangerous landmines than Bomas Draft supporters. At what stage did they succumb to Kenya becoming a mutumba country to accommodate a mutumba constitution? Was the struggle for a democratic, fair, legitimate and transparent constitution making process mere adventurism? What was the conviction then, and not now? Some have remarked that Kenya is not in a suicide mission to accept an unconstitutional and illegitimate constitution. At what stage did they change this standpoint to push for illegitimate constitution?
In the current referendum campaign, bitterness, betrayal and acrimony are impediments to enlightenment. No substantive and meaningful preparations have been done to keep the people factually informed. Instead, the whole constitution making and referendum has remained blurred and captive of political intrigue and outright manipulation. This is clearly shown by politicians who have admitted that there is no proper referendum law to govern its procedures.
Nevertheless, even with that knowledge, they are pushing on with a process that is fraudulent and unconstitutional. So, would Kenyans want to rubberstamp and become fellow accomplices in fragrantly violating the very constitution they want to write and adhere to? What will make us believe and respect the new constitutional dispensation if we cannot respect the existing one?
The philosophy and definition of rule of law require adherence to: the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The political machinations currently under way undermine the very change in focus from constitutionality to constitutionalism. Constitution is not about its letter, but its spirit. This amplifies the philosophy behind the people-driven constitutional making process.
When President Mugabe opted to write and force people to accept his constitution, the response was swift and accurate: no more dictatorship! He chose to undermine the integrity of constitution making by circumventing the tenets of inclusivity and participation, thus dampening the spirit of constitutionalism.
President Mugabe’s action prompted Zimbabweans to vote against re-engineering of tyrannical state powers and instruments that had curtailed individual rights and freedoms. The final outcome in the November 21 referendum in Kenya shall not be in vain, but shall usher in the actual road map to writing a democratic constitution in a legitimate and constitutional manner. We shall not fall back to nothing.
Since Kenyans are constitution and law-abiding citizens, the constitutional court ruling of March 25, 2004 provides the answer. The original Constitution of Kenya Review Commission Draft Bill released on September 2002, and people’s views collected by the commission, shall be tabled in a democratically elected national constituent assembly, and a committee of detail comprising of internationally recognized independent experts shall assist the assembly to draft the final new democratic constitution.
Intense civic education must then be conducted to disseminate the new constitution. After the civic education and people’s verification, the draft shall then be taken back to the constituent assembly for adoption and promulgation.
Writer is a Transitional Justice Fellow and Programme Manager, NCEC
By Ndung’u Wainaina
In 2000, the Zimbabwean people made a resounding No decision against their proposed new constitution which, in their understanding, did not seem to cater for their interests and were not fully involved in its development. The protagonists in the referendum were President Mugabe with his allies on one hand and civil society — opposition parties grouping around National Convention Assembly (NCA) — on the other.
President Mugabe had opted to constitute a handpicked commission that drafted a constitution for a minority political elite, contrary to the NCA-led group that pushed for a new constitution that reflected new political and socio-economic constitutionalism. The NCA module had much more relevance to the needs of the citizens and was ultimately owned by them. To achieve this, the NCA group pushed for the establishment of a democratically elected national constituent assembly independent from power politics and control by President Mugabe’s clique, just like what NCEC in Kenya has been agitating for since 1997.
NCA and its supporters conceived the idea that a people-driven constitution making process represented a more innovative and non-violent way of resolving the conflict between the state and the society. The argument here is that the new constitution must promote just and equitable society and therefore the demand should be a new constitution that broadly reflects, in terms of process and outcome, the will of the people, and not that of the political elite. This position degenerated into a war between President Mugabe and review organs on one hand and the NCA leadership on the other. NCA advanced the debate that power and political order can only be reconstituted through a democratic constitution making process. There was no compromise and subsequently the proposed new constitution was defeated in the referendum.
The argument that a No vote in Zimbabwe referendum gave President Mugabe a new lease of life is a dead one. The political elite in its own self-serving nature is notorious for killing democracy, monopolizing state power and sabotaging checks and balances. Indeed, it is known for creating a patron-client servitude regime, which is fed through corruption, human rights violations, ethnicity and destruction of citizens’ social and economic development.
The constitutional review debates assumed with time the powers, person and character of the executive since the political elite could not concede power and privilege to the people. Just like in Kenya, the character of the executive was at the center of the debate, which reduced the whole constitutional review project into a single item, namely presidential and executive powers. The acrimony in the Zimbabwe case has similarity with the Kenyan case. Those who opposed the referendum in the first place later became its strongest advocates. In the real sense, the constitution making in Zimbabwe and Kenya are showcases of raw power politics and the dilemma confronting countries attempting to write a new constitution within a framework of existing constitutional dispensation and in peacetime, and more so while on transition to democracy from autocratic rule.
However, the difference in the two countries is that Kenya had successfully transited to a new political dispensation, and thus had every opportunity to democratize the constitution making process. But in Zimbabwe, President Mugabe was still calling the shots. Moreover, the unresolved fundamental political issues are going to remain a cause of disagreement for many years. Secondly, the people of both countries are trapped in a yoke of the old and the unknown new, a situation wich denies them the opportunity to critique the body politic of their respective countries and determine its configuration.
In short, it is a lost moment to reach a historic political settlement and define real state reconstruction.
To the Zimbabwean people, the constitutional review was an opportunity to strengthen and protect human rights and good governance, achieve accountablity in government, promote and safeguard separation of powers, foster open and democratic political discourse, establish apolitical and high quality civil service and address corruption, human rights violations and social and economic injustices mor concretely.
Kenyans are contending with two options: to create a new dictatorship under new constitutional dispensation, or to engage the existing weaker one into a democratic constitutional making project. In fact, half-bread arguments — Wako draft supporters in Kenya — are more dangerous landmines than Bomas Draft supporters. At what stage did they succumb to Kenya becoming a mutumba country to accommodate a mutumba constitution? Was the struggle for a democratic, fair, legitimate and transparent constitution making process mere adventurism? What was the conviction then, and not now? Some have remarked that Kenya is not in a suicide mission to accept an unconstitutional and illegitimate constitution. At what stage did they change this standpoint to push for illegitimate constitution?
In the current referendum campaign, bitterness, betrayal and acrimony are impediments to enlightenment. No substantive and meaningful preparations have been done to keep the people factually informed. Instead, the whole constitution making and referendum has remained blurred and captive of political intrigue and outright manipulation. This is clearly shown by politicians who have admitted that there is no proper referendum law to govern its procedures.
Nevertheless, even with that knowledge, they are pushing on with a process that is fraudulent and unconstitutional. So, would Kenyans want to rubberstamp and become fellow accomplices in fragrantly violating the very constitution they want to write and adhere to? What will make us believe and respect the new constitutional dispensation if we cannot respect the existing one?
The philosophy and definition of rule of law require adherence to: the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The political machinations currently under way undermine the very change in focus from constitutionality to constitutionalism. Constitution is not about its letter, but its spirit. This amplifies the philosophy behind the people-driven constitutional making process.
When President Mugabe opted to write and force people to accept his constitution, the response was swift and accurate: no more dictatorship! He chose to undermine the integrity of constitution making by circumventing the tenets of inclusivity and participation, thus dampening the spirit of constitutionalism.
President Mugabe’s action prompted Zimbabweans to vote against re-engineering of tyrannical state powers and instruments that had curtailed individual rights and freedoms. The final outcome in the November 21 referendum in Kenya shall not be in vain, but shall usher in the actual road map to writing a democratic constitution in a legitimate and constitutional manner. We shall not fall back to nothing.
Since Kenyans are constitution and law-abiding citizens, the constitutional court ruling of March 25, 2004 provides the answer. The original Constitution of Kenya Review Commission Draft Bill released on September 2002, and people’s views collected by the commission, shall be tabled in a democratically elected national constituent assembly, and a committee of detail comprising of internationally recognized independent experts shall assist the assembly to draft the final new democratic constitution.
Intense civic education must then be conducted to disseminate the new constitution. After the civic education and people’s verification, the draft shall then be taken back to the constituent assembly for adoption and promulgation.
Writer is a Transitional Justice Fellow and Programme Manager, NCEC