Kenya: Don’t waste the new constitution

The safeguarding role of civil society – Published on Pambazuka, by Jill Cottrell Ghai and Yash Pal Ghai, August 12, 2010.

Kenya is awakening with the realisation of a new constitution. Jill Cottrell Ghai and Yash Pal Ghai warn that Kenyan society must not now allow the silence of complacency to take hold and obstruct the path to democratic and transparent governance. The commitment of the nation’s civil society organisations and movements able to secure the universal implementation of the constitution will ensure its survival, and the upholding of the rights and responsibilities it enshrines for the benefit of Kenyans, write the authors.

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 … (full text).

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