15 Sep 2005


Kenya's new ultra-expensive constitution is about to enter the referendum stage. Though a bit modified from the version discussed here, Anthony Covington's classic Nation article that caused so much furor in 2002 is worth checking out.


"The world population generally divides into two political groups. There is a group on the Left. They think government should get bigger, as it can do wonderful things for everyone. Then there is a bunch on the Right. This lot swears government should be kept small, as it can do very little for anyone. Ironically the Right often gets elected - and by its performance, always proves its premise is correct.

The National Constitutional Conference (NCC) seems to emanate from the Left. They want increased government so it can do more - especially the things it dismally failed to do from 1962. African socialism of the 1960s could not produce the Uhuru promises: water for all, food security, schooling, health-care and the rest."

The final 2005 draft presents many bad provisions: It's a divisive, wordy and occasionally absurd document. Presidential powers are enhanced to imperial proportions. Medievalist religious courts are multiplied, reckless sops to radical socialists like "Hero Committees" , "National Culture Day" and "maximum and minimum landholdings for all" are inserted, employers (and thus business) are granted no powers vis a vis "workers", the aspect of Government is enhanced and the whole document is hardly friendly to the engines of freedom. These are capital, enterprise, growth and innovation.

It is also near impossible to change once implemented, a foolish rigidity. The entire process has generated to farce with politics ruling and an issue of grave national import looking like a standard election campaign, Kenya style. It's pretty ugly stuff. Voting will be in November and one hopes it's a "no".

1 comment:

Nairobian said...

Hmmm, Orwell there you go again, making decisions without looking at both sides of the story.
1. The characteristics of any constitution must include the fact that it is rigid, the rigidity of a constitution is an integral part of constitutionalism. Remember what happened in the current constitution, too easy to change by a parliamentary majority. The minimum requisite age was changed so that Tom Mboya (may he rest in peace) couldn't run for presidency, the provision on parliamentarians seeking mandate from the people if they changed their political party whilst in office was for Oginga Odinga and others during the first whisper of multi-partism in Kenya. Would you prefer a document, in the hands of such politicians as Kenya has, that is easy to change? Or is it more prudent to make changes as is necessary and only those approved by a majority would go through?

2. Have you read Shakespear's King Lear? If you have, which I suspect is true, read it again. Power cannot, and will not work if it is divided into two. Executive power must always emenate from the sovereign if anything is to work. Whether or not I agree with the Command Theory of law or not is not the point, the point is, even in the household, no amount of democracy could ever remove the fact that there is always one head, be it the husband or the overbearing wife. The object of democracy is that we elect that sovereign, not have an un-elected (parliamentary or sovereign nominated) person sharing executive powers. This is not the idea of sovereignty. Human beings work better knowing there is a power which to fear and obey, and that unfortunately is the President.

3. I was going to look at your argument from both sides by making a comment on the African Presidency being different from all other types of sovereignty around the world. Of despots and tyrants. You can follow this argument if you like, but I will follow one of Nationalism. That Nationalists are a dying breed. That persons like Nelson Mandela are rare and hard to find. African leaders do need to mature and put selfish interests aside, however, this maturity has a lot to do with development of the nation as a whole. (refer to my tribute to you on my blog....on jump starting Africa to development). Give us a chance Orwell, Western Societies have had centuries to develop such mores, we need to pace ourselves.