By Prof Alemayehu G. Mariam / August 26, 2010
A Brand Spanking New Constitution
In February 2008, following the ethnically-driven post-election violence in Kenya, I wrote an editorial commentary entitled "The Ethiopianization of Kenya":
After a half century of national existence, democratic experimentation and stability, Kenya has degenerated into a tribal/ethnic basket case beset by violence, fear and loathing... Kenya could have easily avoided this calamity. It had all of the tools at its disposal -- a functioning and well-oiled electoral process, a civically engaged population, a democratic political culture enriched by prior voting experiences, an active and independent press, and a reasonably professional and independent judiciary, among others. It could have peacefully and amicably resolved the persisting questions of land ownership and redistribution, democratic power sharing, and grievances over issues of ethnic domination... Kibaki understood the implications of the theft of the presidential election for Kenyan national politics. He was fully aware of the potential for ethnic upheavals and widespread violence. He thought he could handle it by replicating the lessons of Kenya's neighbor to the north, and perpetuate himself in power by introducing the discredited politics of "ethnic federalism."1
The post-election bloodbath in Kenya ended after 1,500 innocent people were killed and 300,000 internally displaced, and Mwai Kibaki and Raila Odinga agreed to share power and hold a referendum on a new Constitution, which earlier this month was approved by 67 percent of the voters.
Kenya's new 206-page constitution2 replaces the original one engineered by the colonial masters in 1963. It includes a comprehensive Bill of Rights (which encompasses economic, social, and cultural rights). It transfers certain powers to local governments consisting of 47 newly-minted counties, each of which will have a governor and are specially represented in a newly-established Senate. Limits on presidential powers are imposed by requiring parliamentary confirmation of appointees and ending the practice of presidential appointment of judges, among others. The powers of the executive, legislative and judicial branches of government are more clearly delineated, and citizen participation in the political process is promoted. The Constitution authorizes the establishment of a new Land Commission with the power to re-possess illegally-occupied public lands. It guarantees women the right to inherit land. Muslim family (kadhis') courts are given jurisdiction over matters "relating to personal status, marriage, divorce or inheritance" for Kenya's Muslim minority.
Supporters of the new Constitution argued that these and other changes will usher in a new era of rights for Kenyans (guaranteeing clean water, decent housing, sanitation, and an adequate supply and quality of food and economic rights of inheritance for women), and ensure official transparency, accountability and clean government. According to one recent poll, 91 percent of Kenyans support the new Constitution. President Mwai Kibaki euphorically declared that the new Constitution will be "our shield and defender as we strive to conquer poverty, disease and ignorance." President Obama praised it as "a significant step forward for Kenya's democracy". Opponents campaigned against the new Constitution because it "allows abortion on demand," and recognizes a non-secular (khadis') court system. The stronghold of opposition is said to be in western Kenya. Some have suggested that opposition to the new Constitution is stoked by politicians who are likely to lose their political and economic grip in the western region under the new Constitution.
Kenya's voluminous new constitution and its ambitious scope of coverage of rights is long on promises not unlike most African constitutions which offer a cornucopia of rights and accountability provisions. The real question is whether Kenya's new Constitution will continue the long unbroken tradition of dictatorship of Big Men in Africa or become a real instrument for the creation of a government of laws for the Kenyan people.
Government of Laws, Not of Men
Constitutional government is fundamentally about the rule of law. Organic rules are established to protect the rights of citizens from arbitrary and abusive exercise of government power, and ensure leaders and institutions are held accountable under the "supreme law of the land". Stated simply, in a government of laws, "no man or woman is above the law." But much of Africa has suffered under the government of men - autocrats, civilian dictators, military juntas, hybrid civilian-military dictators - who have pillaged the continent to line their pockets and oppress the people for nearly one-half century. For instance, Ethiopia for centuries remained under the rule of monarchs who believed they were "elect of God" and operated under the principle that they "can do no wrong" or be held accountable under the law. The maxim which conceptualized the monarch as the supreme law of the land holds, "it is impossible to sue the king or plough the sky." (Negus aykeses, semay aytares.) The "divine rule of kings" in Ethiopia gave way to an inhuman military dictatorship, followed by a brutal full-fledged kleptocracy.
The modern idea of legal accountability to check the abuse of political power dates back to the English Magna Carta (1215). The Great Charter was imposed on a reluctant king to safeguard against his arbitrary personal rule and to hold him accountable under the "laws of the land". By the same token, modern constitutions are intended to be a bulwark against dictatorship and tyranny by requiring of leaders and institutions observance of the principle of the rule of law. But that has not happened in Africa. African dictators have sought to create the illusion of constitutional democracy while practicing constitutional dictatorship. They sneer at the very thought of being held accountable when they exceed, abuse or misuse their powers. Far from imposing limitations on power, constitutions in Africa have served to expand and maximize the powers of dictators who have used them as "trump cards" to suit their needs. Many African dictators have used their constitutions as "meal tickets". Western donors often refuse to extortion money unless they see the dictators wrapped around a nice liberal-sounding constitution. Domestically, these dictators have used their constitutions to legitimize their dictatorships, provide a "legal" cover for their klepto-oligarchic state, and to protect and preserve their privileges. As offensive weapons, they have use them to sledgehammer the opposition. For instance, in 2005 after Zenawi was defeated in the polls, he wiped out the opposition by charging them with five counts of violations of the Constitution. After he declared victory in the May 2010 election which he "won" by 99.6 percent, he made two public offers to opposition parties and leaders that he would sit and negotiate with them (lol) provided they "respect the will of the people and accept the country's Constitution and constitutional process."3
Kibaki told a teeming crowd of thousands in Nairobi that the new Constitution will be "our shield and defender as we strive to conquer poverty, disease and ignorance." We wish the Kenyans the best of luck; but the fact is that in very few places in Africa have constitutions ever been used as shields. They have been used as spears and swords against individuals and as barrages of arrows against dissident groups in society. Kenya's choices are clear: She can take Ghana's path and launch a constitutional democracy, or imitate its northern neighbor and be swallowed up in the quicksand of constitutional dictatorship. The Ghanaian path is the more difficult one to take because it requires translating constitutional rules into daily practice. It requires nurturing a democratic culture complete with all the expressive freedoms. This means going beyond babbling rapturous constitutional rhetoric about a "reborn" Kenya, "shields" and "defensive" armor against poverty and so on. To ensure constitutional success, ordinary Kenyans must take full ownership of their Constitution or it will be swiftly hijacked by the wily and corrupt politicians. Kenyans civil society institutions and intellectuals must take the lead in educating the masses about their new Constitution and help develop structures for popular participation. If Kenyans fail to maintain "eternal vigilance" over the corrupt crooks skulking in the halls of power, they will soon find that the constitution they were told was their shield will have been transformed into spears and arrows of dictatorship, garrotes to choke their civil society institutions and cudgels to trash their human rights. If they need proof of that ugly future, let them calmly gaze northward.
From the Misrule of Law to the Rule of Law
Is it not a tragic fact that for most of Africa dictatorship is the only game of politics? The real question to contemplate as Kenya begins political life under its new Constitution is whether it will ultimately become a constitutional democracy or constitutional dictatorship. Kibaki has been in the saddles of power since his days as minister of finance in 1969, and is Kenya's third president since 1963. The stench of corruption in high government places in Kenya reeks to the high heavens. In August 2006, Senator Barack Obama said, "Here in Kenya, there is a crisis [of corruption] -- a crisis that's robbing an honest people of the opportunities they fought for."
Having lofty-sounding and well-crafted constitutions will not guarantee the crooked politicians will conform their conduct to the supreme law of the land. If mere words in a constitution were proof of the existence and functioning of constitutional government, Ethiopia's would be second to none. Kenya now is at the fork in the constitutional road. Whichever road it takes will be fraught with danger. I am hopeful that Kenya will take the road less travelled -- Ghana's Way -- in the rest of Africa. But I have deep concerns over the challenges that lie ahead. Do the Kenyan masses understand their new Constitution? Better yet, do their leaders? I am doubtful that the vast majority of Kenyans have actually read and understand the 206-page Constitution (let alone engaged in vigorous debate over its provisions), despite that country's 80 percent literacy rate. Even a studious and learned constitutional lawyer will have difficulty penetrating the dense recesses of the new Constitution. The corrupt politicians thrive in a whirlpool of mass ignorance; and I have a gnawing suspicion that they will find a way to hijack the Constitution and continue to do business as usual. The silver lining in the cloud is the manifest popular excitement and enthusiasm for the new Constitution by ordinary citizens. Only they can save their country from the serrated teeth of the corrupt and voracious politicians.
Long-term political stability in Africa will be impossible without citizens and leaders believing that legitimate governance rests first and foremost on observance of an agreed upon set of ground rules that limit the power of leaders and institutions and guarantee the rights of citizens. The words of most African constitutions are dead letters. They mean nothing, except what the dictators want them to mean. They neither shield citizens from the slings and arrows of ruthless dictators nor guide the people out of the wilderness of failed "statedoms" and thiefdoms (kleptocracies). These so-called constitutions are "legal" documents but they are rarely legitimate instruments of governance. They disempower the ordinary people from becoming active participatory citizens and rarely serve as tools for greater official accountability, transparency, or protection of human rights. Africa's dilemma today is whether it will be democratized or continue to be "dictatorized".
If the recent polls are any indication, there seems to be a significant attitudinal shift among average Kenyan citizens and the elites that the new Constitution represents a change of power from a group of ethnically-entrenched demagogues to a set of supreme rules. That is a hopeful sign. But the proof of the pudding is in the eating, as they say. Ultimately, the proof of Kenya's new Constitution will be in its application and dutiful observance by its leaders and citizens. If ordinary Kenyans resolve to defend their new Constitution against the hordes of thieving politicians and kleptocrats, the words written on that paper will be worth more than all the precious jewels in the world. In the meantime, Kenya's neighbors to the north will be scratching their heads wondering if their Constitution is worth the paper it is written on! North of the Kenyan border the motto is: "For our friends, everything; for strangers, nothing; and for our enemies, the law (constitution)!"
Free Birtukan and all political prisoners in Ethiopia.