CHAPTER 1
CONCEPTUALISING SOVEREIGNTY, CONSTITUTIONS, STATES AND GOVERNMENTS IN KENYA AND AFRICA
This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Conceptualising sovereignty, constitutions, states and governments in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA 2) Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya.
1. Introduction to People, Sovereignty, Constitutional, State, Market and Governments in Kenya and Africa This Chapter conceptualizes, problematizes and contextualizes some of the most important variables or parameters in constitutional democracy in Kenya and Africa: people or popular sovereignty, constitution, state, government and constitutional democracy.1 The main point of reference or departure is the constitutional text, structure experience and …theory?... of Kenya, Nigeria, South Africa, Uganda and Tanzania. Other states from Africa, North America, Latin America, and Asia are also studied, especially Ghana, Ethiopia, USA, UK, Germany, France, Australia, China and Japan.
This book seeks to develop an Afro-Kenyanist conceptual and theoretical framework. Thus, the following three sets of founding and contemporary values, principles, theories, philosophies and perspectives are problematized, interrogated and integrated. First, justice as shield and defender.2 Second, mutual social responsibility a contextualized “African Socialism,”3 harambee (let’s pool and pull together).4 Third, shared prosperity which is also rendered as “I am because we are and since we are therefore I am….5
From March 9, 2018 when Raila Odinga, the ‘People’s President’ had a ‘handshake’ or rapprochement with President Uhuru Kenyatta. Kenyans have been engaged in constitutional reform discussions. This book therefore engages the debates on the Building Bridges Initiative (BBI).
1 What is to Con? Pro? ….. 2 See Kenya’s National Anthem, Schedule of the Constitution of Kenya 2010; George Senoga Zake (1986) “Folklore Music of Kenya,” Nairobi, Kenya: Uzima Press 3 See Republic of Kenya (1965), Sessional Paper No 10 of 1965 on “African Socialism and its Application to Planning in Kenya” at http://siteresources.worldbank.org/INTAFRICA/Resources/257994-1335471959878/Sessional-Paper-No- 10-(1965).pdf (accessed 29/1/2020) 4 Republic of Kenya, ibid. 5 …. 1 1.1 Conceptualising and contextualizing the validity, legality, legitimacy and supremacy of the Kenyan Constitution What is the Constitution? Is the Constitution a law?
First, the title of article 2 of the Constitution of Kenya is “supremacy of the Constitution.” The title captures the essence of the article and the significance of the Constitution in the constitutional and legal system. However, the title does not cover all the major rules, principles and values embodied in Arts 2(1), (2), (3) and (4) (i) (a) and (b). It is thus inaccurate. Happily, it captures the essence. And titles or headings are not primary but are secondary aids of interpretation or construction.
Article 2(1) significantly provides that “this Constitution” is the supreme law. Three issues, first, it is this and not any other Constitution (eg not 1969). Second, it is a law. And third, it is the supreme law.
Section 3 of the 1969 Constitution was arguably clearer and more logical on two issues. It stated:
“This is the Constitution of the Republic of Kenya and shall have the force of law.”6
Moreover, the Constitution binds all persons (all natural7 and juristic or legal entities) and all state organs (most of these are legal persons anyway; this is for emphasis) at both levels of government, (another emphasis: state organs capture this).8
The second major point is that article 2(2) states:
“No person may claim or exercise State authority except as authorised under this Constitution.”
All (public) power or authority must emanate from specifically guaranteed or enumerated constitutional provision. This may be directly found in a constitutional provision or it may be under the Constitution, that is, in a statute, rule, regulation or practice and tradition that is specifically authorized by or indirectly derived from and inconsistent with the Constitution.
There is a difference between the exercise of power and the enjoyment of liberty. On the one hand, power or authority must have a constitutional force, and hence the President, Speaker, Chief Justice, or Governor or any other official must cite the source of authority in appointment, disappointment or any conduct (action or omission).
6 I.e. it is not just a political or moral charter or code…. 7 A person in law, A person is an entity with rights and duties in legal theory or jurisprudence, constitutional, administrative…., and company law, among others. Human beings are natural persons. Arms of Government, ministries, departments, and agencies (MDAs) are sometimes legal or juristic persons. Other important persons are corporations, inter-governmental bodies, and incorporated CSOs…. It depends also on the objective. This may be through bankruptcy, insanity and .personality can be limited or lost by natural and juristic persons. 8 The drafters or framers were acting with extreme caution – ex abundanti cautela partly because in Kenya and in many African states, some have cast doubt on whether the Constitution or the law binds some state agencies or officials. That is part of the rumour that a President or PM is “above the law.” See chapter of CODRALKA 1 and Chapter 9 of CODRALKA 2 (on presidency, presidential immunity ... “President and Prime Minister in Kenya and Africa” 2 Three problematic examples: First, President Kenyatta appointed Dr Fred Matiangi as Chairperson and Deputy, National Development Implementation and Communication Cabinet Committee. Second, President Kenyatta appointed County and Regional Coordinators without (sufficiently) addressing section 17 of the Sixth Schedule.9 Third, in 2013/2014, President Kenyatta and the then Devolution CS Anne M. Waiguru separately appointed Mr Abduba Dida to the same office but cited different laws. Moreover, they were criticised for assuming that Dida would assume office immediately. Yet vetting by National Assembly was required.
On the other hand, the people have liberty, unless it is constitutionally limited in the Bill of Rights, especially under Arts 21, 24, and 25.
The third major point is that Article 2(3) states, “The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.”
The point is that this Constitution should be accepted as valid and legal in at least two senses. First, that its substantive provisions or clauses are in totality or as a whole valid and legal. Second, that the procedure used to adopt it was valid and legal. This means that courts should not entertain an action invalidating the Constitution as a whole or substantive grounds. Remarkably, there was attempt to question the validity of Kadhis Courts before the Interim Independent Dispute Resolution Committee (IIDRC). Nor should courts entertain any invalidation proceedings that question the procedure or process that was used to adopt this Constitution as happened in Njoya v. 10 AG.
Remarkably, there may be issues of unconstitutionality, inconsistency or ambivalence between or among specific constitutional provisions. Examples include: on ethnic and regional inclusion and balance; on gender equity in appointive and elective offices; the powers and functions of the 11 National Police Service Commission (NPSC) vis-a-viz Inspector General of Police (IG(P)).
My argument is that whenever there is inconsistency between the Bill of Rights and a provision of power, the Bill of Rights clause generally trumps power.
An example is that section 2A of the 1969 Constitution provided that “there shall be only one party.....” And yet the Bill of rights chapter (BS 70-85) had provisions on the freedoms of conscience, opinion, expression, assembly and association, among others. To the extent that section 2A was inconsistent with the Bill of Rights, and in fact contravened numerous provisions of the Bill of Rights to that extent section 2A was unconstitutional. This is in spite of the refusal of courts to entertain invalidation cases. Section 2A was repealed in 1991.
9 In the foregoing 2 issues, see Ben Sihanya (forthcoming 2020) “Constitutionality of President Kenyatta’s appointment of CS Dr Fred Matiang’i as Chairperson, National Development Implementation and Communication Cabinet Committee,” working paper at Sihanya Mentoring & Innovative Lawyering at www.innovativelawyering.com (accessed 28/2/2019). 10 Timothy Njoya and Others v. Attorney General and CKRC (2004) eKLR, Misc. App. No. 82 of 2004. 11 See the contestation between the Kavuludi NPSC and the Inspector General of Police on appointments, transfer of some police officers... 3 Compare the cases from Nigeria, Uganda, Zimbabwe, and other states regarding the sudden change of the constitution (or “grund norm”); overthrow of the President or PM; and dismissal of (senior) Government officials. Examples include: Lakanmi;12 Exparte Matovu;13 Opoloto;14 15 16 Grace Stuart Ibingira; Madzimbamuto v. Lardner Burke.
Fifth, Art 2(4) states:
“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
Five issues arise: First, why single out customary law? Second, what are the other sources of law (to which the Constitution is supreme) under art 2(1), (4), (5), (6), …?). The Constitution does not have a list of all the sources of law applicable in Kenya. These are to be found scattered in Art 2, other provisions of the Constitution and statutes such as section 3 of the Judicature Act, 1967, Cap 8. There was intention at the Bomas National Constitutional Conference (NCC) to list the sources of law (not list of statutes) in an article. It was abandoned. Such a clause is necessary. Hence the sources of law in Kenya are (or include) the Constitution; statutes of the National Assembly, Senate, and the 47 County Assemblies; statutes of the UK Parliament of general application (which ones? even in 2019?); certain applied statutes if India (still?) (one of these was the Indian Transfer of Property Act (ITPA)); rules, regulations and bylaws which are also called delegated, subordinate, legislation; Islamic law; Hindu law; customary international law; treaty law.
Third, apart from the Constitution which is supreme and at the top of the hierarchy of Kenya’s constitutional, juridical or legal and judicial system, do the other sources of law relate hierarchically under the Constitution and/or under section 3 of the Judicature Act? Yes and no. For example, the SM Otieno case accurately referred to as Virginia Edith Wambui Otieno v. Joash Ochieng Ougo and Omolo Siranga) the Court of Appeal said African customary law and (English) common law are two great bodies of law which apply in their respective spheres.17
12 …. 13 …. 14 …. 15 …. 16 See also Chapter 14, CODRALKA 1. 17 See V.E. Wambui Otieno v. J. Ochieng Ougo & O. Sirangu HCCC Nairobi 4873 of 1986; V.E Wambui Otieno v, J. Ochieng’ Ougo & Anor Civil Appeal No 31 of 1987 (Nairobi), H.W.O. Okoth-Ogendo (1989) “Customary law in the Kenyan legal system: An old debate revived,” in JB Ojwang' J.B., and JNK Mugambi, (eds) (1989), The S.M. Otieno Case: Death and Burial in Modern Kenya, NUP, Nairobi; Sean Egan (ed) (1987) Gicheru C. & Muhoho, P. (1986) “The SM Otieno: Kenya’s Unique in Burial Saga,” Nation Newspapers, Nairobi at https://searchworks.stanford.edu/view/1928168. 4 What are the legal Issues, relevant Facts or evidence; appropriate Law; Analysis of law and fact; and conclusion, holding and rationale (or ratio decidendi) (IFLAC) in SM Otieno?
First, who between the widow Wambui and brother Ougo and Otieno’s Umira Kager clan had the right to bury criminal lawyer SM Otieno, and where? Lang’ata cemetery or Upper Matasia, on the one hand, or Nyalgunga, Siaya District (now County) on the other? Was Luo customary law of burial discriminatory of women under s. 82 of the 1969 Constitution?
Second, what were the relevant facts or evidence? What were the truths (established facts), half truths, and balatant lies? On both sides? Blatant lies from Wambui’s side: about three?
First, that a Luo widow must be inherited by a mad man or janeko. Second, that there is a funeral fire or magenga. Third, that there is driving the evil spirits (or tero buru). These fed into Justice Frank Shield’s ex parte ruling and off the cuff or unsubstantiated remarks obiter dicta that SM Otieno quoted Shakespeare, drunk at the Pub (at Bomas), and was so cosmopolitan that he could not be bound by the by “primitive (burial) customs like those of the Luo.”
These lies were to demonstrate that Luo customary law of burial was “repugnant to justice and morality” and that (English common law should apply, including burial by Wambui the intended administrator of Otieno’s estate.
Blatant lies from Ougo’s and Siranga’s side were about three. First, that like all Luos, Otieno must be buried at his ancestral home. That Otieno had no home in Nairobi, only a house. That to build a home one must be shown a plot by the father or uncle. The person must sleep on the plot, having taken there a cock and an axe. That if the cock crows, then the site is blessed. Some of these were ancient customs. They were intended to prove that Luo customary law was to be followed in Otieno’s burial at home.
Remarkably, customary law is custom, tradition, or practice that has received judicial recognition under the Constitution, the Judicature Act, the Evidence Act, Civil Procedure Act and other laws. The sixth major point is that there is need to develop the following three sets of laws. First, Kenyan Common law of marriage, custody, succession, and burial, contract, real property, intellectual property, and torts, among others. Already, some judges, magistrates and Kadhis are developing the law in family, succession and burial areas and in contract, conveyancing and procurement, among others These will facilitate pan Kenyan relations. Second, there is need to develop Kenyan customary law in these and related fileds. This will facilitate inter tribal relations. Third, there is need to continue developing the relevant customary laws of the respective tribes or ethnic groups.
The seventh point is that Art 2(4) also invalidates “any act or omission in contravention of this Constitution...” What is the difference between a void law and an invalid act or omission? What is
5 “voidable,” “null and void”?18 what is the difference between “inconsistent law” and “conduct in contravention” of the Constitution? Inconsistency is a lower level of non-compliance than contravention, which suggests negation. Thus, laws must strictly comply with the Constitution.
Art 2(4) should thus be the basis of (almost) all actions regarding constitutional non compliance. Arts 21, 22, 23, 24, 25 and 47 then reinforce the constitutional supremacy. In spite of such clarity, some debate persists on supremacy and sovereignty with regard to the people, Constitution and 19 Parliament.
Sovereignty underpins and links such fundamental questions as the production, reproduction, use and sharing or (re)distribution of resources and public power in Kenya, Nigeria, South Africa and elsewhere. The conceptualization, problematisation and contextualization of sovereignty is key to the operationalisation of the Constitution and the proper demarcation of the role of the state and the ruler, especially the Kenyan, Nigerian or South African President.
Three broad tendencies have emerged. First, the progressive state or President. This is absent in these three states and most African states after the retirement of President Nelson Mandela and Julius Nyerere. Second, the retrogressive or rent-seeking state and president are dominant. Kenyatta’s case is an unmitigated case study. Third, there are a few states and presidencies in Africa, like Ghana or Botswana that gravitate between the two: What are the trends and why? Yet most neo-or post-colonial states claim are governed by illiberal constitutional values, principles, processes and procedures.
They have also been called parasitic, patrimonial, predatory, rentier, or prebendal20 partly because of the commitment of the rulers and their tribal affiliates to focus on primitive accumulation. This trend has been captured most dramatically, and in a display of the arrogance of power and impunity by President Uhuru Muigai Kenyatta on numerous occasions before the “handshake.” It is remarkable that all the four key political players in this context apologized to one another after the handshake namely, President Uhuru Kenyatta and William Ruto; and Raila and Kalonzo Musyoka….
Two quarrels from the presidential bully pulpit stand out. At the funeral of William Ole Ntimama, the former Cabinet Minister and Maasai leader who for over thirty (30) years championed Maasai
18 These issues are discussed in detail in Administrative law, Judicial Review, and Chapters... CODALKA 1 and Chapters....of CODRALKA 2. 19 See Chapters 6, 7, 8 in CODRALKA I and Chapters...in CODRALKA 2. 20 Richard Joseph (1987) Democracy and Prebendal Politics in Nigeria, Spectrum Books, Ibadan, Nigeria; 10 Larry Diamond (2008) The Spirit of Democracy: The struggle to build free societies throughout the world, Henry Holt and Company ltd, New York.; cf KNCHR (2008) “On the Brink of the Precipice: A Human Rights Account of Kenya's post. 2007 Election Violence,” Kenya National Commission of Human Rights at http://www.knchr.org/portals/0/reports/knchr_report_on_the_brink_of_the_precipe.pdf (accessed 7/9/2016). 135;Richard Joseph (2000) For Humanity: Reflections of a War Crimes Iinvestigator, Yale University Press, New Haven, Connecticut.
6 land rights, including against Kikuyu encroachment of Maasailand, Raila Odinga challenged the Kenyatta administration to release the report of the Truth, Justice and Reconciliation Commission (TJRC) which addresses land dispossession of the Maasai and other Kenyans.21 Kenyatta retorted:
“nyinyi mnang’ang’ania kiti na sisi tumekalia na hatuna haraka ya kutoka…”(you people are struggling to have a seat (public power; the presidency…) but for us we are seated and 22 we are not in a hurry to leave)
Mr Kenyatta added:
“kumeza mate sio kula nyama … endeleeni kumeza mate, lakini nyama tutakula (swallowing saliva 23 is not the same as eating meat… keep on salivating but we will continue eating meat).”
Remarkably, both Kenyatta I and Kenyatta II (Plus) administrations have promoted Kikuyu colonialism, dictatorship, ethnic politics, rent seeking, and primitive accumulation. What Kenyatta told Raila and non-Kikuyus is reminiscent of what Kenyatta I told Bildad Kaggia and non- Kikuyus in Kaggia’s Kandara Constituency in 1966:
“Kaggia, we were together with Paul Ngei in jail; if you go to Ngei’s farm, he has planted a lot of coffee and other crops. What have you done for yourself? If you go to (Fred) Kubai’s, he has a big house and a nice shamba. Kaggia, what have you done for yourself? We were together with Kung’u Karumba in jail, now he is running his own buses. What have you done for yourself?”24
Kenyatta I demonstrated his arrogance of power and disdain for a constitutional right, freedom, and liberties guaranteed to Jaramogi Odinga and the non-Kikuyu while on a tour to open a new hospital in Kisumu on October 25, 1969. The tour choreographed to provoke Odinga, shoot children, women and men dead or injure them; then was to ban the opposition Kenya Peoples Union (KPU) and detain its leaders.25 Kenyatta said, inter alia:
“...for my part I do say this. If these people are dirty, if they bring about nonsense, we shall show
21 Moses Nyamori (2016) “Raila: Why Uhuru has refused to implement TJRC report years later,” Standard Digital, Nairobi, September 15, 2016, at http://www.sde.co.ke/article/2000216139/raila-why-uhuru-has-refused-to- implement-tjrc-report-years-later (accessed 29/9/2016). See also Nzau Musau (2016) “Give Coast residents back their land, Raila tells Jubilee,” The Standard, Nairobi, September 24, 2016. 22 Macharia Gaitho (2016) “It’s in extreme bad taste to boast of ‘eating’ to starving Kenyans,” Daily Nation, Nairobi, September 20, 2016, at http://www.nation.co.ke/oped/Opinion/440808-3387662-10bis14/ (accessed 25/9/2016). 23 Macharia Gaitho (2016) “It’s in extreme bad taste to boast of ‘eating’ to starving Kenyans,” Daily Nation, Nairobi, September 20, 2016, at http://www.nation.co.ke/oped/Opinion/440808-3387662-10bis14/ (accessed 25/9/2016). My interpretation. 24 This has been interpreted to mean that Kenyatta’s understanding of independence as an opportunity for primitive accumulation of wealth. See ES Atieno Odhiambo (1987) “Democracy and the Ideology of Order in Kenya,” The political economy of Kenya, at 177-201; Ngugi wa Thiong’o (1981) Detained: A writer’s prison diary, 240 East African Publishers, Nairobi, Kenya; Ali Mazrui (1969) Violence and Though: essays on social tensions in Africa, 103- 105, Longmans, London; David Ndii (2016) “Of the Limuru hunt, land and the Luo bogeyman,” Daily Nation, Nairobi, September 23, 2016, at http://www.nation.co.ke/oped/Opinion/of-limuru-hunt-land-and-luo- bogeyman/440808- 3392860-iqea88/index.html (accessed 28/9/2016). 25See E.S. Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1 Journal of Contemporary African Studies, at 29-42. A https://www.tandfonline.com/doi/abs/10.1080/0258900042000179599?tab=permissions&scroll=top 7 them that Kenya has got its government. They dare not play with us, and you Bwana Odinga as an individual, you know that I do not play around...”26 The second occasion was Kenyatta II’s characterization of all Kenyans as whiners and thieves (including himself? Or he as the leader?). He said:
27 “Wakenya ni kulia na kuiba hiyo ndio tuko na ujuzi (Kenyans are expert thieves and nags)”
And this is in spite of the fact that most of the developing country states underwent constitutional reconstruction in the late 1980s and 1990s partly because of the collapse of communism or authoritarianism and the advent of neo-liberalism, neo-con(servative), or “globalization.” There was a long and rhetorical debate that Kenya belonged to the group classmatic societies while Tanzania, for instance, was classless. Jomo Kenyatta’s partial response was that Kenya followed African socialism or communitarian mutual social responsibility.28
In the 2000s, Kenya, Nigeria and South Africa have largely pursued the policy of constitutional reversal even where the constitutional texts are largely progressive. The Nigerian presidential elections of 2015 were adjudged relatively free, fair and verifiable. And President Mohamud Buhari, a retired general, took some measures to address incompetence, corruption and poor governance. Yet critics argue that the regime is focusing on (alleged) corruption by the former 29 regime or the opposition; not by those in Government.
26 See Atieno Odhiambo, ibid, at….Astonishingly, Kamau Ngotho has keenly sough to revise Kenya’s political history, and even justify the Kisumu massacre reducing it to an incident, spat…., and choosing the sad occasion of the 50th Anniversary which should have been marked by an official apology and ... as demanded by the TJRC report,,,, See Kamau Ngotho (2019) “When Kisumu went up in flames” Sunday Nation, Nairobi, October 27, 2019, at https://www.nation.co.ke/news/politics/When-Kisumu-Town-went-up-in-flames/1064-5326486-kcqw4g/index.html (accessed 30/1/2020). For a more incisive analysis and rebuttals, see Akoko Akech (2019) “Kenyatta regime covered up Kisumu massacre,” Daily Nation, Nairobi, November 3, 2019, at https://www.nation.co.ke/oped/opinion/Kenyatta- regime-covered-up-Kisumu-massacre/440808-5334552-jmfjxh/index.html (accessed 30/1/2020). 27 Nancy Agutu (2016) “Kenyans are experts at stealing, hurling insults, Uhuru says in Israel,” The Star, Nairobi, February 25, 2016, at http://www.the-star.co.ke/news/2016/02/25/kenyans-are-experts-at-stealing-hurling-insults- uhuru-says-in-israel_c1301621 (accessed 28/9/2016). 28 See the discussion on sessional paper No 10 of 1965 on African socialism and its application to planning in Kenya. Cf Yash P. Ghai (1993) “Constitutions and governance: A prolegomenon,” in Sammy Adelman and Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers, pp. 51-74; Issa Shivji (1976) Class Struggle in Tanzania, Heinemann, London; Mahmoud Mamdani (1996) “Introduction: Thinking through Africa’s impasse,” in Mahamoud Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, Princeton University Press. pp. 3 – 34; Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neocolonialism, 1964-1971, University of California Press, Berkeley pp. 1-27. 29 See Ben Ezeamalu (2016) “100 Days in Office: How Buhari’s anti-corruption war has gone so far,” Premium Times, September 5, 2015 at http://www.premiumtimesng.com/features-and-interviews/189547-100- days-in-office- how-buharis-anti-corruption-war-has-gone-so-far.html (accessed 23/5/2015). Buhari was a military president from 1983 – 1985. Wole Soyinka called Buhari a “born again democrat” in the run up to the 2015 General Elections. See The world weekly (2015) “Born-again democrat’ Buhari wins Nigeria’s election,” at http://www.theworldweekly.com/reader/view/storyline/2015-04-02/born-again-democrat-buhari-wins-nigerias- election/3502 (accessed 8/9/2016); Ngozi Okonjo-Iweala (2012) Reforming the Unreformable: Lessons from Nigeria, The MIT Press, op. cit. Critically, the 2018 Nigerian Presidential elections are regarded as not free nor fair, having been preceded by the unconstitutional replacement of the Chief Justice. The electoral injustice is a contest of the recession of constitutional democracy and electoral practice in Africa generally, including Kenya, Uganda, Zimbabwe, DRC, Senegal,.....
8 The Constitution thus largely adopts a three-pronged approach in defining the relationship between the individual or groups, on the one hand, and the State (or National and County Government), corporate and unincorporated associations, and other individuals or groups, on the other hand. First, the Constitution broadly guarantees the right, liberty or freedom. Second, the Constitution states that the right may be limited by the interest of third parties. Third, the Constitution makes a broad statement that the right may be limited by the public interest and especially through legislation.
The most comprehensive formula on balancing rights and obligations is probably Kenya’s Article 24(1) of the 2010 Constitution:
“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”30
Kenyan and African Courts have developed a methodology of balancing constitutional rights and obligations based on contemporary experience as well as ancient and classical constitutional scholarship.
1.2 Ancient and classical typology or classification of Constitutions How has constitutional typology developed and influenced governance from the ancient and the classical to the contemporary context in Kenya, Nigeria and South Africa? How have the following three and other Constitutions influenced the debate on typology? We focus on three states. First, the transformative and revolutionary Constitution of Kenya 2010.31 Second, the South African Constitution (1994, 1996). And third, the Nigerian Constitution 1999.
1.2.1 Ancient typology of Constitutions The earliest form of classification of constitutions has been attributed to Plato and Aristotle. According to Aristotle, constitutions are the essential structures of an organization. In this essay, the focus is the
30 Article 24(1) of the Constitution of Kenya. 31 This is the subject of completed and ongoing research at Sihanya Mentoring and Innovative Lawyering. These includes at least four studies: Ben Sihanya (forthcoming 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 1: Elections, Governance, Human Rights, the Rule of Law, and Due Process in Kenya and Africa; Ben Sihanya Essays, 1989-2019, IL & SM; Ben Sihanya (forthcoming 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 2: Presidency, Bureaucracy and Administrative Justice in Kenya, Sihanya; Revised Teaching Notes on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2020, IL & SM; Sihanya (forthcoming 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 3: Opposition, NGOs, Academics, Clerics, and the Media in Governance, IL & SM; Ben Sihanya (forthcoming 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol 4: Constitutional Democracy Cases and Material, IL&SM. 9 Constitution of territories recognised under law, including state, nation, or country,32 and sub state units like counties or provinces. They define what the parts of an organization are, what these parts do, and how the parts are related to each other.33 Aristotle attempted to classify constitutions along two dimensions. The first one had to do with the number and the types of persons in the ruling group.34 The second dimension had to do with whether the ruling group followed aims that are “proper,” that is, intended for the good of all, or “perverted,” that is, only for the rulers’ benefit. Aristotle argued that the best constitution is one where anyone may prosper and live the good life.35
Increasingly, the Kenyan, Nigerian and South African experiences indicate a lot of concern regarding access, sharing and governance of resources, as well as the production, reproduction and distribution of power. Thus, South Africa has had relatively free, fair and verifiable elections since the Interim Constitution 1994. Nigeria had the first generally free, fair and verifiable elections in 2015 since the 1999 Constitution. And Kenya only had relatively free, fair and verifiable elections in 1963 and 2002 when Jomo Kenyatta and Mwai Kibaki, and the Kikuyu generally have been direct and indirect beneficiaries.36 Significantly, Nigeria, South Africa and Kenya have had serious problems with the distribution of power and resources.37
Aristotle also offered some hints and suggestions about a type of a mixed constitution which should be the best.38 He opined that many people, taken collectively, have more wisdom than the few, even though each member of the many will not be as an individual wise enough. There is danger, therefore, in giving individual members of the lower, poorer classes offices of state. Does this validate the marginalization of the poor in governance? For instance, in colonial Kenya, voting rights and power in elections or referenda was partly based on and qualified or graduated depending on classmatic considerations, property ownership, residence, employment (in the largely inaccessible Government bureaucracy), and education.39
32 These are nchi or taifa in Kiswahili. 33 Ibid. 34 This, he says, applies whether they were wealthy or poor. 35 J.L. Ackrill (1987) A New Aristotle Reader, Ibid. See also www.yorku.ca/horowitz/courses/lectures/15_aristotle_best_constitution.html (accessed June 16, 2014). 36 Some of the benefits since independence in 1963 have been disproportionate access to jobs in Cabinet, in finance, security, (legal) education; land (including land formerly controlled by white settlers and bought by the Government through all Kenyan tax payers; affordable loans (for land purchase and for business (eg through state and tribally controlled KCB, NBK); infrastructure (roads, hospitals). Remarkably, even though Moi ruled for 24 years, the (political) economy and legal sociology were not fundamentally transformed from Kikuyu control eg landlord and tenant profiles or identities and relations in Nairobi. Of course the discourse on who has looted more has been in vogue in 2019 eg by Ngunjiru Wambugu, MP, DCI Kinoti, Oscar Sudi, MP Kimani Ngunjiri, ...in social media, electronic and print media..See Constitution of Kenya 2010 Arts 67(1) (e) etc... acknowledging historical and continuing injustices; Truth, Justice and Reconciliation Commission (TJRC) Report, Commission of Inquiry into Post-Election Violence (CIPEV) Report; Ndungu Land Report on Illegally and Irregularly Acquired Land; Chapter 14, 15 .. of CODRALKA 1 and Chapters…. of CODRALKA 2. In 2008 and 2018 even Kibaki and Kenyatta acknowledged 37 Ibid. 38Ibid. 39 See Y.P. Ghai and J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya, OUP, Nairobi; B.A. Ogot & William R. Ochieng (1995) Decolonization and Independence in Kenya, 1940-93, James Currey, London, EAEP, Nairobi, Ohio UP, Athens. Ogot documents the basis and impact of granting no vote, one, two or 10 But there are risks as well in denying the lower orders as a whole any share in political power. Therefore, one should consider giving the many a share in deliberation, but not office holding. By this, it can be properly inferred that Aristotle’s ideal constitution is that which is mixed that is, it should entail all the elements of an orderly society.
Aristotle made two more observations that indicate the direction he wanted to take in building a set of practical ingredients for the best constitution. He observed that there is no natural sense in which just or “expedient” can be applied to the rule of a tyrant. He advocated for two components of a polity. First, an oligarchic component of polity where there is the rule of a free people over themselves and the citizens are financially well-off. And second, a democratic component of a 40 polity where office-holders would be selected according to merit and not wealth.
According to Aristotle, most writers on constitutions fall short on the question of practicality, whereas what is really needed is a system that could be legitimized and become stable on the basis 41 of the circumstances that already exist. This is the essential subject of political science – for him.
Scholars, judges, lawyers, law makers and administrators have developed important typologies of constitutions, states and governments. It is clear that the typologies or classifications are neither comprehensive nor mutually exclusive.
1.2.2 Classical typology of constitutions What is a constitution in the classical and contemporary theory and praxis? Prof K.C. Wheare explains that most scholars and researchers of constitutional law use the term “constitution” in two different meanings.42 First, a narrow view used when describing a selection of rules that control the government and are embodied in a document. Second, a broader view is used when describing the whole system of government in a country and the rules that bind that government and controls its powers.
Thus, in this paper, a two-pronged model summarizes the definition of a constitution, by capturing fundamentals. First, a constitution is a set of norms including rules, policies, principles and values that govern a state or polity, and even community, clan, club, chama…43 we will focus on the Constitution of the State, even though we will also interrogate state or national entities like countries (Kenya), states (Nigeria), or provinces (South Africa); sub-states or national units like EAC, COMESA, IGAD, ARIPO, AU and UN.44 Second, a constitution is the written document or instrument that captures the norms, including rules. It may be one document or several. three votes to various categories of Africans beginning with the 1957 elections under the Oliver Lyttelton Constitution of 1954. 40 Cf development of House of Lords and Commons in England; Senate and House of Lords Representatives in the US and Nigeria; and the House of provinces in South Africa. 41 Yash Ghai (1993) “Constitutions and Governance in Africa: A prolegomenon,” in Sammy Adelman and Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell, London, at 53. 42 K.C. Wheare (1951) Modern Constitutions, London, at 91, cited in Constitution Amendment: Nature and Scope of the Amending Process, at http://164.100.47.134/intranet/CAI/CA_Nature.pdf (accessed 28/5/2014). 43 Norm here means rules but may also mean value judgment. 44 See Chapters 1, CODRALKA 1 and Chapters 3 and 4, CODRALKA 2. 11 According to Prof H.W.O. Okoth Ogendo, there is no single authoritative definition of what a constitution is; nor is there “a minimum set of principles that defines the content of a model constitution.”45 He observes that throughout history, different societies at particular stages of development have pronounced varying factual, philosophical, or theoretical conditions as equivalent to a constitution.46 He has defined a constitution using a six-pronged typology, which I have generated, adapted and elaborated:
• a single constitutive act [constituting an independent Kenya in 1963, a Republic in 1964, and reconstituting Kenya in 2010] • a fundamental norm, value, or moral principle [1969 and previous Constitutions focused on rules; not principles, not values, not policies…] • a set of common aspirations or expectations; • a social and economic programme [cf. constitution of China, ex-socialist states] 47 • an important juridical fact. Prof J.B. Ojwang argues that the constitution is the scheme of organization of public responsibilities which must be performed in any community. It identifies or prescribes the public organs of the community and vests in them (or recognizes in respect of them) particular roles which are to be performed in the interest of the people as a whole.48
A constitution is a normative system and a way of life. It embodies core juridical or legal, cultural, economic, political and social values of the society concerned. Every constitution has written and unwritten components i.e. concrete and abstract aspects. The abstract aspects are sometimes called the intendment or the spirit of the Constitution. The core values have:
(a). legal and constitutional character (b).embody institutional and structural relations (c). are moral and ethical norms and standards 49 (d).constitute political culture.
The emphasis is that the constitution is way of life; it is living law. This idea was emphasized in numerous cases. In Njoya & Others v. A-G and Others Justice Aaron Ringera went even as far as
45 H.W.O. Okoth-Ogendo (1999) “The quest for constitutional government,” in Goran Hyden, Dele Olowu & H.W.O. Okoth-Ogendo (eds) African Perspectives on Governance, Africa World Press, Trenton, pp. 33-60. Prof Okoth-Ogendo was a Professor of Public Law at the University of Nairobi Law School when the article was published in the context of research project at the University of Florida, USA. 46 Okoth Ogendo, ibid. 47 Ibid. 48 J.B. Ojwang (1990) Constitutional Development in Kenya: Institutional Adaption and Social Change, African Centre for Technology Studies (ACTS), Nairobi, Kenya, at 1. Prof Ojwang published the book when he was a professor at the University of Nairobi Law School. He later became Dean, then High Court Judge and then one of the inaugural (seven) Supreme Court Justices. 49 On the foregoing see works of Prof Ben Obi Nwabueze, Yash Pal Ghai, Okoth-Ogendo, J.B. O Jwang and Ben Sihanya. 12 problematically stating that the constitution has a soul and has consciousness.50
Prof Nwabueze and other scholars of comparative African constitutional democracy have adopted an essentially political perspective in defining a constitution. In a passage worth quoting in extenso, Nwabueze states:
“A constitution is a mode of organizing a state and its government. It is, in other words, a body of fundamental principles according to which a state is structured. This emphasizes its character as essentially political, with an authority and sanction sounding in the realm of politics. This was its original meaning and effect. Even today this approach to the purpose and function of a constitution has its adherents.”51
Nwabueze adds:
“There are many countries that still consider the appropriate function of a constitution to be a political charter of government, consisting of largely declarations of objectives or directive principles of government and a description of the organs of government in terms that import no enforceable legal restraints. Such a constitution has no more than a political existence; its provisions are political, not legal, serving merely to exhort, to direct and inspire governmental 52 action, and to bestow upon it the stamp of legitimacy.”
I problematize this “political determinism” of constitutions and propose a model and reconceptualization that appreciates the social and political economy as well as the change problematique in Kenya and Africa. I also problematize the Montesquieuan model of limitations and restrains that informed classical English constitutional democracy, and propose a more nuanced facilitative theory that captures the practices in emerging or contemporary strand in British (not just English) and American constitutional democracy (especially variants among some democratic and progressive US scholars).
1.3 Nomenclature in constitutional democracy: Constitution, state, government, governance and cognate doctrines The quest for an appropriate Constitution has been the quest for the rule of law, due process, equity, inclusion, participation human rights and democracy. That quest is captured by constitutional democracy. Constitutional democracy is clearer because it captures the foregoing concerns. It is also the product of interdisciplinary and multi-disciplinary engagement.
1.3.1 Constitutional democracy in Kenya and Africa Constitutional democracy is an omnibus concept or doctrine. It captures, incorporates and deploys numerous concepts including constitution, constitutionalism, democracy, separation of powers, checks and balances, human rights and the rule of law. Thus constitutional democracy relates to
50 This was from the case of Ndynabo v. Attorney-General [2001] 2 E.A. 485. 51 Ibid., at 20-21. For a keen study and operationalization of the political perspective of the 1963 and 1969 Constitution of Kenya, see Yash. P. Ghai & J.P.W.B. McAuslan (1970, 2001) Public Law and Political Change in Kenya: A study of the legal framework of Government from colonial times to the present, Oxford University Press, London. 52 Nwabueze, Ibid.. 13 the constitution in its normative, documentary and instrumentalist sense; to the State and state structures; and to government.
Constitutionalism, the rule of law, democracy and human rights assumes or deploys important concepts such as sovereignty, nations, nationalism or the national question, nation states, government and governance.
An illustrative definition of constitutional democracy may take three perspectives. First, a state or polity may have a constitution but no or limited democracy. This may be because the text includes anti-democratic rules, principles or values, or because the practice or operationalization abrogates or undermines a progressive or transformative constitution. Kenya under Jomo Kenyatta and Daniel Arap Moi fall under the first sub-typology. The Constitution was amended to concentrate power in the President directly or to institutionalize the Kenya African National Union (KANU) as the sole party and to nullify freedoms of expression, association and assembly while creating an imperial president. Kenya under Mwai Kibaki and Uhuru Kenyatta (Kenyatta Plus) fall into the second sub-typology.
Second, a state may have no Constitution (in the sense of a written text); and still enjoy democracy. Greek city states are a leading example. Moreover, following the Inter Parties Parliamentary Group (IPPG) of 1997, Kenya enjoyed a limited measure of constitutional democracy without an appropriate constitutional text in some matters.
For instance, the appointment of members of the Electoral Commission of Kenya (ECK) was embodied in a “gentleman’s understanding” or social norms, between President Moi and the opposition leaders like Mwai Kibaki of the Democratic Party (DP), Raila Odinga of the National Democratic Party (NDP), and Wamalwa Kijana of Ford Kenya. There was also greater freedom of expression, association and assembly even through the one-party Constitution and legal system had not been thoroughly reformed or reviewed.53
Third, constitutional democracy thus means the convergence between democracy and constitutionalism. There is a constitution in both senses; it embodies democracy; and the state or polity practices constitutionalism and democracy. The majority have their way. The individuals or minorities have their say, respectively.54
Ben Nwabueze has dedicated five volumes to the quest for constitutional democracy in Africa.55 Nwabueze’s work on constitutional democracy is original and insightful. But there are some challenges. What is clear, which I pursue in this article is that the Constitution of Kenya 2010 is change-oriented, transformative and revolutionary to an extent that even Nwabueze could not
53 B.A. Ogot & W.R. Ochieng (1995) Decolonisation and Independence in Kenya: 1940-1993, East Africa Educational Publishers Ltd, at 247. 54 Issa Shivji (ed) (1991) State and Constitutionalism: An African Debate on Democracy, Southern Africa Political Economy Series (SAPES) Trust, Harare, pp. 3-26; Issa Shivji (1989) The Concept of Human Rights in Africa, Codesria, Dakar. See also Part 1.2.2 below. 55 Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1-5, Spectrum Books, Nigeria. 14 have anticipated when he wrote.
Some of the key contributions to the quest for constitutional democracy in Kenya and Africa have been (constitutional) lawyers. Some emphasise normative or rule-based, regulatory perspectives, including how (constitutional) rules related to (socio-economic) factors. Political scientists focus on agency or institutional processes. Political and social historians call attention to the history and contemporary development or relevance of ideas about constitutional democracy and governance.56 Sociologists emphasize the significance of social structures in constitutional democracy.57 Anthropologists focus on social or identity politics and relations. Anthropologists 58 share some concerns with sociologists.
1.3.2 Constitutionalism in Kenya and Africa59 According to Jackson & Tushnet, constitutionalism involves having the rule of law applied to the governed and government officers; judicial independence and the observance of human rights. It is a commitment to limitations on ordinary political power. It revolves around a political and socio-economic process, one that overlaps with democracy in seeking to balance state power and individual and collective rights. It draws on particular cultural and historical contexts from which it emanates; and it resides in public consciousness.60 It involves three main rubrics: First, application of constitutional state power to organise and structure government. Second, applying constitutional and state power to expand rights, liberties, power construction and rights protection as well as promotion. Third, limiting the power of state agency and officials.
Prof H.W.O. Okoth-Ogendo views constitutionalism as a struggle which cannot be achieved through the promulgation of a constitution, per se (as such). As noted, the Constitution should limit the powers of the government, establish the rule of law, protect human and people’s rights and foster democracy.
56 E.S. Atieno Odhiambo (2002) “Hegemonic Enterprises and Instrumentalities of Survival: Ethnicity and Democracy in Kenya,” African Studies Review 61, 223- 249; E. S. Atieno- Odhiambo (1988) “Democracy and the Ideology of Order in Kenya,” in Walter Oyugi, E.S. Atieno Odhiambo, Michael Chege, Afrifa Gitonga (eds) (1988) Democratic Theory and Practice in Africa, 111-138, Henemann, Portsmouth; B. A. Ogot (1967) History of the Southern Luo: Migration and settlement, 1500-1900. East African Publishing House; ES Atieno Odhiambo (2002) “Introduction: Bethwel A. Ogot and the Crucible of East African Scholarship, 1964-1980,” in Toyin Falola and E.S. Atieno Odhiambo (eds) The Challenges of History and the Burden of Leadership in Africa: The Essays of B. A. Ogot Africa World Press, Eritrea, vii-xx. Africa World Press, Trenton, New Jersey & Asmara; W. R. Ochieng and E. S. Atieno- Odhiambo (1995) “Prologue: On Decolonization,” in B. A. Ogot and W. R. Ochieng', (eds) Decolonization and Independence in Kenya 1940-1993, East Africa Educational Publishers Ltd; ibid; Vincent Simiyu (1988) “The Democratic Myth in the African Traditional Societies,” in Walter Oyugi, E.S. Atieno Odiambo, Afrifa Gitonga and Michael Chege (eds) (1988) Democratic Theory and Practice in Africa, Heinemann, Portsmouth, 49-70. 57 Max Weber (1919) “Politics as a vocation,” at http://anthropos-lab.net/wp/wp-content/uploads/2011/12/Weber- Politics-as-a-Vocation.pdf (accessed 27/7/2016); Charles A. Ellwood “Marx’s Economic Determinism in the light of modern psychology,” American Journal of Sociology, Vol. 17, No 1, 35-46 . 58 Archie Mafeje (2001) Anthropology in Post Independence Africa: End of an Era and the Problem of Self- Redefination, Monograph under African Social Scientists Reflection, Heinrich Boell foundation, Nairobi, Kenya. 59 This section has been refined from Ben Sihanya (2013) “Constitutionalism and the rule of law in Kenya’s electoral process,” Handbook on Elections Disputes in Kenya under the auspices of the Judiciary Working Committee on Elections Preparation (JWCEP) and the Law Society of Kenya, at 22-56. 60 See Vicki Jackson & Mark Tushnet (2006) Comparative Constitutional Law, Foundation Press, New York (2nded). 15 However, most African constitutions were enacted and have been amended or applied to remove any checks on governmental power, to limit the power of the sovereign people, to subject them to the will of the president and his government, and to restrict or deny them most fundamental human rights. And even Kenya’s progressive Constitution is suffering and threatened by reversals.61
Okoth-Ogendo describes constitutionalism thus:
“The idea of constitutionalism must, in the very first instance imply that a society acknowledges its constitution as a living standard with which the conduct of public behaviour should conform and against which it must be evaluated. The minimum evidence of adherence to the principles of constitutionalism is therefore public respect for the constitution, in whatever form, of the society of which one is a member. Other elements must include – fidelity of life under law i.e. respect for the rule of law and – protection of human rights, including those of communities and minorities.”62
And Prof JB Ojwang’ principally defines constitutionalism in terms of government restraint:
“Constitutionalism really means government that is subject to restraint, in the interest of the ordinary members of the community; government that is not arbitrary or totalitarian… A constitution may or may not embody the principle of constitutionalism. Where a constitution contains clear checks and balances to the exercise of public power, it will serve as an underpinning for the principle and practice of constitutionalism.”
Constitutionalism is thus the habitual acceptance of the rules enshrined in the constitution or consistent with constitutional values and principles as the ultimate bases of political choice. Where there is habitual acceptance and adherence to principles and rules in the Constitution, the rule of law and the supremacy of the Constitution as stipulated under Article 2 of 2010 Kenyan 63 Constitution, constitutionalism, will be achieved.
Okoth-Ogendo and other scholars have emphasized that there is the emergence in Africa of the phenomenon of constitutions without constitutionalism. And in a later essay, he described the phenomenon as constitutionalism without constitutions. This is where in some cases progressive constitutional principles, values and practices have evolved without a change in text.64 Some US scholars call this translation.65
61 Cf Ben Sihanya (2004-2016) “Constitutional Law Class Teaching Materials,” University of Nairobi Law School, filed at Sihanya Mentoring & Innovative Lawyering, under review for publication as Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa, (CODRALKA) Vol 2: Presidency, Premier, Legislature, Judiciary, Commissions, Bureaucracy and Administrative Justice in Kenya, Innovative Lawyering & Sihanya Mentoring. 62 …. 63 Cf sec 3 of the 1969 Constitution. Article 2 provides, in material part, as follows: “The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.” 64 See the discussion on Inter Parties Parliamentary Group (IPPG) consensus above, and discussions below. 65 Cf Lawrence Lessig (1993) “Fidelity in translation,” 71 Texas Law Review, p. 1165, q.v. 16 1.3.3 Autochthony and the development or typology of the Kenyan Constitution, state, government and governance Autochthony relates to the idea of a homegrown, indigenous, nationalist constitution; one that captures a common history or origin of the people duly constituted into a state; their present or 66 contemporary challenges and opportunities, and their common future applications.
Constitutional autochthony is the process of asserting autonomy and hence constitutional nationalism vis-a-vis an external legal or political power. It is concerned with instilling sentiments of patriotism, pride, national consciousness and identity in the people of a given state.67
According to Ben Nwabueze, autochthony, constitutionally, has two main aspects: First, it relates to the source from which the constitution derives its authority as law. e.g. from imperial authority or colonial masters or from the a local enacting body.68 Second, it relates to its content i.e. the frame of government which it establishes and to its contents.69
On constitutional origin, K.C. Wheare writes:
“for some members of the commonwealth, it is not enough to be able to say that they enjoy a system of government which is in no way subordinate to that of the United Kingdom. They wish to be able to say that their constitution has force of law and if necessary of supreme within their territory through its own native authority and not because it was enacted or authorized by the parliament of the United Kingdom – that is to speak, ‘home-grown,’ sprung from their own soil, and not imported from the United Kingdom.”70
The emphasis given by K.C. Wheare as elaborated by Ben Nwabueze is that since the constitution is the foundation of the state, it is necessary that this foundation should be made locally. This is to remove any possible misunderstanding about the status of the country that 71 might arise from the fact that its constitution was enacted by a former imperial power.
The importance of constitutional autochthony, relates to the content and the origin of the constitution. Whether legal autochthony requires that the constitution be enacted by a native authority or by an imperial or colonial authority, people’s aspirations can work in both circumstances.72 Constitutional reforms can be initiated and realized through implementation of the constitution. Originalism supplies the historical experiences, precedent and the travaux
66 Cf the definition by The Free Dictionary, at http://www.thefreedictionary.com/autochthony (accessed 22/3/2016). 67 See Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid, at 59. 68 Nwabueze (1974) Presidentialism in Commonwealth Africa, ibid. 69 Nwabueze, ibid. 70 As cited in Nwabueze (1974) Presidentialism in Commonwealth Africa, C. Hurst & Company, London at 59. 71 Ghai & McAuslan (1970), op. cit. Ghai coined a graphic phrase with reference to developing states: “the constitution that came in from the cold.” See Ghai (1993) “Constitutions and Governance in Africa: A Prolegomenon,” in Sammy Adelman and Abdul Paliwala (eds.), Law and Crisis in the Third World, Hans Zell Publishers, London. 72 Hans Kelsen’s argument that what matters is the efficacy of the grundnum (or constitution); the fact that it is habitually obeyed. Remarkably, Kelsen affirms that validity is not (necessarily) based on the grundnorm’s popular legitimacy or technical validity. It may have originated from a conqueror, or an usurper. The main argument for the Constitution of Kenya 2010 was autochthony in terms of local origin and local content. It was about popular sovereignty or popular participation in process and content. 17 preparatoires (or record of proceedings that attended the negotiation and adoption.73 Nationalistic sentiments can be instilled as the citizens look back to the origin, the present state 74 and future and the future optimistically.
Autochthony has sometimes been interpreted as Africanisation, Kenyanisation or ethnicisation, in terms of conceptualising, designing, implementing, enforcing or reforming the Constitution. But it has sometimes taken the negative connotation of ethnicisation, depending on the ethnic 75 oligarchy, dynasty, aristocracy or kleptocracy that is controlling.
At independence, autochthony was a broad-based concept captured in terms of “African” dignity by the leading theorist, architect and tactician of Kenya’s Independence Constitution and 76 nationhood, Thomas (Tom) Joseph Odhiambo Mboya.
1.4 Typology of constitutions, states and governments in Kenya and Africa The methodology for studying constitutions may fall into a three pronged. First, constitutions may be studied in terms of a dichotomy which focuses on similarities and differences among liberal, socialist and developing country constitutions. Second, they can be studied in reference to the internal or supranational organization (or “constitution”) under the various state constitutions. Under the second typology, there are republican constitutions, federal constitutions, confederal constitutions and regional or majimbo, provincial, or devolved (county- national governments) (or regional, quasi-federal), constitutions. There is also presidential executive, parliamentary executive or the hybrid, semi-presidential executive that is an amalgam of the two. This focuses on how the state, state structures and governance are organized.
The third typology is whether the constitutional text is written or not. It has been debated in classical and in the contemporary context. It is useful to ask how many written texts have constitutional value and effect. These three typologies are themselves problematic. At this point, 77 they are work in progress.
There are serious overlaps among these classifications. They are sometimes conflated, convoluted, confused and obscure.
There is therefore a difficulty in finding an exhaustive typology and classification of
73 That is one of the reasons why the US and South African constitutional experiences are increasingly important in the incorporation, implementation, enforcement and reform of the Kenyan 2010 Constitution. 74 Ben Nwabueze (1974) Presidentialism in Commonwealth Africa, op. cit. 75 Kikuyunisation of the political economy and hence the constitutional process. 76 Tom Mboya (1963) Freedom and Africa, Little Brown, London; Chinua Achebe characterized Mboya and Nyerere as clear-minded and progressive thinkers as compared to Obafemi Awolowo and Nnamdi Azikiwe (“Zik”) who were consumed by ethnic bigotry (especially Awolo), and mediocrity. See Chinua Achebe (1983) The trouble with Nigeria, Heinemann publishers, London; Chinua Achebe There was a Country: A Personal History of Biafra Heinemann Publishers, London. But was Kenya’s independence constitution largely modelled on or drafted or recommended by Sir Willliam Ivor Jennings? Cf William Ivor Jennings (1993) The Law and the Constitution , University of London Press ltd. 77 A clearer and finer typology of constitutions, states, and governments must await ongoing research at Sihanya Mentoring and innovative lawyering under the CODALKA series: Constitutional Democracy in Kenya and Africa. 18 constitutions. In this study, I seek to review the emerging methodology or formulate appropriate constitutional typology based on research on comparative practice and analysis focusing on Kenya and the following, among others: South Africa, Nigeria, Egypt, USA, UK and Germany, China and Japan.
1.5 Broad or general categories of constitutions, states and governments The contemporary, non-ideological, but perhaps formal and liberal conception of state is largely traceable to the Peace Treaty of Westphalia in the 17th century of 1648.78 The leading Kenyan comparative constitutional law scholar Prof Yash Pal Ghai and other scholars have worked with a three pronged typology of constitutions and states: liberal, socialist and developing states. Remarkably, the socialist category is now mainly important as critique of the (theoretically) dominant liberal-oriented state.
The key parameters are two: First, economic organization or the role of the government and the market in resource allocation. This includes property rights and how they are held; and the role of contract v. the national or sub-national development plan). Second is the political organization, especially the production, reproduction and distribution of political power, including the form of Government and the quality of governance, the rule of law and human rights.
A state can be conceptualized as a distinct set of political institutions whose specific concern is the organization of domination, in the name of the common interest, within a common territory.79 Max Weber and Weberians also define a state in terms of the entity with the authority for the legitimate use of violence. The precise definition of a state has been the subject of scholarly, 80 political, and popular contestation.
The generally accepted formal definition of the state is embodied in Art. 1 of the Montevideo Convention of 1933 on the Rights and Duties of States. A state is defined to have the following four characteristics.
First, a permanent or stable population, constitutions, international law, and state(hood) are 81 primarily about people.
82 Second, a defined territory – boundaries are certain, can be established or ascertained.
78 The treaty was signed between May and October 1648. 79 Cf Ben Sihanya (2004-2020) “Constitutional Law Class Teaching Materials,” University of Nairobi Law School, filed at Sihanya Mentoring & Innovative Lawyering, op. cite under publication as Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA 2) Vol. 2: Presidency, Bureaucracy and Administrative Justice in Kenya (Revised Teaching Notes on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2016,) Innovative Lawyering & Sihanya Mentoring, Nairobi, Siaya. 80 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd Ed) at 507. 81 E.g. Kenya had about 38.5 million people in the 2009 census about 43 million in 2013 and about 46 million people in 2016. The growth rate is estimated at 2.61 % per annum. Some officials say Nigeria has a population of between 120-150 Million. Why is the total and the voting population in Kenya, Nigeria, and other African states usually a matter of conjecture? Why are censuses always generally or ethnically and regionally? Is it to manipulate the resource allocation and the electoral outcomes? 82 This also means that national, state, domestic or municipal laws only apply within the state territory. A few 19 The borders are certain or can be ascertained using maps and instruments. The boarder may be water, or land. Some are clear with beacons. Why walls as proposed by Trump and Kenyatta- Ruto? Security? Tenderprenuership? Paranoia? International colonial borders are to be respected.
They may be questioned only peacefully under international law through the UN Security Council 83 or the International Court of Justice (ICJ), an agency of the UN.
84 Third, there must be an effective government.
Fourth, the capacity to engage in international relations, transactions and exchange with other states or international persons. This includes protecting its citizens within the state and abroad; protecting non-citizens within the territory;85 recognizing other countries’ passports; trade, as well as incur and settle debts, among others. This is closely related to the presence of an effective 86 government.
Once an entity fulfils the above, it will be recognized in international law or transnational legal process (TLP)87 as an international person in this case a state.
As indicated, Ghai uses a three-pronged typology in problematizing the constitution and state.88 We emphasize that the state and government are creatures of or reconstructed by the constitution and international law, especially in terms of (internal) popular sovereignty (Art 1) and (external) state sovereignty (Art 4).
I begin with the main generic classifications of constitutions and states by the leading African constitutional scholar, Prof Yash Pal Ghai.
exceptions are the conflict of law rules in private commercial and social transactions; and in public law where USA sanctions illegally applies extraterritorially its trade, competition, IP and security and tax laws. 83 See Nigeria v Cameroon; Somalia v Kenya. Cf Amin of Uganda questioning Kenya-Uganda border in 1976. 84 What is an effective or efficacious government? One that is habitually obeyed; compare “effective government” to the African debate; recognition of state v. government v. head of state or government. Hans Kelsen’s pure theory of law, on the origin, validity and change of the grund norm or government provide useful insights into the question of effective government or valid or legitimate constitutions. See Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State, 1963-2011: Lessons from British, American, German and African constitutionalism,” Law Society of Kenya Journal. Cf USA, Nigeria, Zimbabwe (1965), Uganda (1966, 1967, 1971, 1985, 2016…); See also Yash Pal Ghai (2009) “Creating a new constitutional order: Kenya’s predicament,” in Elizabeth W. Gachenga, Luis G. Franceschi, Migai Akech and David W. Lutz (eds) Governance, Institutions and the Human Condition LawAfrica, Nairobi. 85 Cf USA advisory and evacuating its citizens from Kenya because of insecurity; USA planning to keep low staff levels and send in marines to protect its embassy. 86 This is a big issue in many African failing and failed states. Cf. Somalia. Since 1981 when Somalia collapsed under dictator General Said Barre. The UN and the African Union Mission in Somalia (AMISOM) have been the main guaranters of security. 87 Transnational Legal Process (TLP) has been popularized by leading scholars like Yale Law Professor Harold Hongju Koh who was the 15th Dean (from 2004 until 2009). See Harold Hongju Koh (1996) “Transnational Legal Process,” Yale Law School Legal Scholarship Repository, Nebraska Law Review, at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2902&context=fss_papers (accessed 8/8/2016). 88 Yash Pal Ghai (1993) “Constitution and governance in Africa: A prolegomenon,” in Sammy Adelman & Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell Publishers, London, 51-75. 20 1.6 The Ghai model on Constitution, state and Government Yash Ghai published the chapter on his typology in 1993 while serving as a professor at Warwick Law School. He is the co-author with Prof JWPB Mc Auslan of the classic treatise on Kenya’s constitutional and public law: Public Law and Political Change in Kenya: a study of the legal framework of government from colonial times to the present, Prof Ghai has kept fidelity with 89 constitutional democracy in theory (scholarship) and practice.
Ghai developed a three pronged typology of constitutions: liberal, socialist and developing state.90 This was in the context of the quest to understand an emerging global order in the wake of decline in the Cold War following the collapse of the Berlin Wall and the socialist Soviet empire. Second was Afro-pessimism. And third, was Afro-optimism based on the upsurge of liberal or libertarian values that gave so much optimism for progressive socio economic, political and constitutional 91 development in Kenya and Africa.
First, there are liberal constitutions. These are largely associated with the Western (liberal) societies and reflect the social, economic and political struggles in those countries. They focus on individual liberties. They emphasize justiciable rights and presuppose a well-functioning judiciary. The US Constitution 1787 and 1791 is a good example. Constitutional instruments which undergird the British government especially some written fragments of British constitutional law such as the Magna Carta of 1215 (The Great Charter),92 the Act of Settlement, the constitutional instruments regulating or governing devolution of power to Scotland or Wales and the European Union Constitution and related treaties.
Second, there are socialist (oriented) constitutions which are largely a by-product of the Soviet socialist (or Bolshevik) revolution of 1917 which helped diffuse them throughout the world.93 Subsequently, China played a great role in the globalization of socialist constitutionalism. They tend to emphasize the rights and duties of the citizen rather than (only the rights of) the 94 individual.
In Africa, most of the socialist constitutions were by products of the Cold War which was marked by competition for turf or territory and influence between the liberal West and socialist East. Socialism was at the core of the Constitution in Mozambique, Ethiopia and Tanzania.95 And it
89 See for instance, his stewardship of the Constitution of Kenya Review Commission (CKRC), and his role in the Katiba Institute. He has also been active as an amicus curiae (or a friend of the court; in penning important newspaper articles and participating in civil society organisation demonstrations or related activities. among others. 90 Ibid. 91 The Japanese American scholar, Francis Fukuyama announced the optimism based on liberal triumph in terms of the end of history. See Francis Fukuyama (1992) The End of History and the Last Man, Penguin Publishers. See Francis Fukuyama (1989) “The end of history,” The National Interest http://www.wesjones.com/eoh.htm (accessed 23/5/2016). 92 Some of the key provisions of the Magna Carta 1215 are: due process, fair trial, habeas corpus. See Martin Loughlin (2013) The British Constitution: A Very Short Introduction, Oxford University Press, Oxford., at https://global.oup.com/academic/product/the-british-constitution-a-very-short-introduction-9780199697694 93 On Bolshevik dissemination. 94 Ibid. 95 Constitution of Tanzania, 1977, Constitution of Ethiopia, 1995, Constitution of Mozambique. 2004. These have been amended or superseded following neoliberal trends. 21 also influenced constitutional praxis in African states that claimed to be liberal.
Third, there are developing country constitutions. These constitutions mainly borrow from the two types above. They are a reflection of the liberal and socialist experiences. They try to make them indigenous by incorporating developing country values, constitutional safeguards and experiences.
But these are also contrived to serve local tribal, dynastic class or related socio-economic and political interests. For instance, the Kenyan and Tanzanian constitutions have been influenced by German and British traditions on Parliament and then either or both administrative system, process, bureaucracy and justice on the one hand, and security or policing on the other, among others.96 Developing country constitutions try to address the dichotomy between the individual 97 and the communities as far as rights and interests are concerned.
1.7 Applying Ghai’s generic, ideological or developmental model The Ghai methodology on classifying constitutions (and/or states) has been very useful. I have modified or elaborated on it using two parameters: economic organisation, and political organisation.
But the typology above has at least three problems. First, Socialist states, for instance, have largely disintegrated especially after the collapse of the Berlin Wall from about 1989 that marked the withering or end of the Cold War.98 Second, the typology is also not sufficiently representative. It is arguably unbalanced because during the climax of the Cold War, there were very few (only about 7-20) confirmed liberal constitutions and more than 160 developing country constitutions.
Remarkably, the United Nations (UN), World Bank, IMF and the World Trade Organization (WTO), among other transnational organizations divide states (or countries) into developed, developing and Least Developed Countries (LDC). But now there are also G7 or G8 (G7 Plus Russia), G20, BRICS (Brazil, Russia, India, China and South Africa, the five major emerging national economies). More recently, there are the MINT (Mexico, Indonesia, Nigeria and Turkey) 99 which are regarded as developing very first economically.
96 Kenya was British Protectorate and Colony from 15/6/1895 and 1920, respectively. Tanzania (Tanganyika and Zanzibar) was a German, then British colony. 97 Cf the African Charter on Human and People’s Rights (the Banjul Charter 1981). However, the 16km (10 mile) coastal strip remained a protectorate upto independence in 1963. Hence the reference to Kenya as colony and protectorate. See John Lonsdale (1998) “The Moral Economy of Mau Mau: Wealth, Poverty and Civic Virtue in Kikuyu Political Thought, in Berman and Lonsdale (1998) Unhappy Valley: Conflict in Kenya and Africa, University of Michigan; Article 63 of the Constitution provides a basis for community land rights. See Community Land Act, 2014. 98 The end of the Cold War is as debatable as the end of history and (ideological) conflict that was propounded by Prof Francis Fukuyama, a Japanese American scholar. See Francis Fukuyama (1992) The End of History and the East Man, op. cit. 99 There is debate in African constitutional democracy and political economy whether Botswana, Ghana, and Nigeria is democratizing faster while the largest economies are Nigeria, Egypt and South Africa in that order. There is also an argument that Nigerian economy is now the largest in Africa when the informal sector is taken into account. And that 22 These typologies focus on econometric models with limited reference to information on the UN Development Programme’s (UNDP’s) human development index (HDI) takes into account governance an related parameters in constitutional democracy such as liberty, equity, gender, 100 literacy, among others.
Third, there were, and still are, major differences among developing country constitutions themselves e.g. Kenya and Mozambique.101 In the 1963-2010 period, the Kenyan and Commonwealth African102 constitutions were largely aligned to the British Westminister export model. Arguments for autochthony led to neo-presidential or semi-presidential as well as (quasi) 103 federal models.
1.8 Typology of governments in Kenya and Africa What is a government? Serikali in Kiswahili and Sirkal in (Dho)Luo? The Black’s Law Dictionary and relevant authorities define government in six ways. First, government is defined as an organ of the state in terms of its traditional Western organization or structure in terms of the three arms:
“The government is but an agency of the state distinguished as it must be in accurate thought from its scheme and machinery of government. In the US interpretation government consists of 104 the executive, legislative and judicial branches in addition to administrative agencies ….”
Second, there is also a broad conceptualization of government under the Constitution of Kenya 2010. The Government in Kenya includes the National and the County Government. The County Government has two arms: the County Executive led by the Governor and County the County Assembly presided over by the Speaker of the County Assembly.
the South African economy remains the most sophisticated. See the discussion on BRICS and MINT in part 2.2. 100 The Human Development Index (HDI) is now applied by numerous scholars, as well as states and transnational institutions like the World Bank and the WTO. See United Nations Development Programme (UNDP) 2015 “Human Development Report 2015 Work for Human Development,” at http://hdr.undp.org/sites/default/files/2015_human_development_report.pdf(accessed 9/9/2016).; World Bank (2015), “World Development Report: Mind, Society and Behaviour, Washington, DC. 101Ibid. 102 This is the Anglophone African constitutional tradition. Cf the works of Ben Nwabueze and Yash Ghai cited elsewhere in this paper. 103 See this study in Ben Sihanya (forthcoming 2016) Constitutional Democracy in Kenya and Africa I (CODEKA I), “The presidency and public authority in Kenya’s new constitutional order,”Chapter 3, Ben Sihanya (2011), Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi, at http://www.sidint.net/docs/WP2.pdf. (accessed 16/6/2014). 104 Henry Campell Black (ed) (1957) Black’s Law Dictionary, op. cit Are the administrative agencies part of the executive? Or independent? Cf on the dependence of the 13 or so constitutional commissions and the two independent offices on the executive, and especially the presidency. See Chapter 15 of the Constitution entitled “commissions and independent offices.” Some of the constitutionally independent but politically dependent or subservient commissions include the defunct commission for implementation of the Constitution (CIC), the Independent Electoral and Boundaries Commission (IEBC), Public Service Commission (PSC), Judicial Service Commission (JSC), AND THE National Land Commission (NLC). See Ben Sihanya (2013) “Constitutional Commissions in Kenya: Experiences, Challenges and Lessons,” A study under the auspices of the Friedrich Ebert Stiftung (FES) presented at the Conference on State of Implementation of Constitution since 2010 on November 20, 2013 at Laico Regency, at http://www.fes-kenya.org/media/publications/Constitutional%20Commissions%20- %20Prof.%20Ben%20Sihanya.pdf (accessed 7/9/2016), in chapter 7 of the CODEKA series: Constitutional Democracy in Kenya and Africa. 23 Third, government also includes the thirteen (13) commissions105 and two independent offices, 106 namely Controller of Budget and the Auditor General.
Fourth, government is “the system of a polity in a state; that form of fundamental rules and principles by which a nation is governed or by which individual members of a body politic are to regulate their social actions.”107 It refers to the institutions, rules and administration of state 108 authority.
The fifth definition focuses on the administrative bureaucracy as a unitary category: “The whole class or body of office holders or functionaries considered in the aggregate, upon whom devolves 109 the executive, judicial, legislative, and administrative business of the state.”
The sixth is a pejorative and represents the perception of government as a coercive agency: “In a colloquial sense the US or its representatives, considered as the prosecutor in a criminal action; as in the phrase, the government objects to the witness.”
Seventh, Government is not equivalent to the Executive, which is one of its three arms.
Eighth, Government is not equivalent to the President who is only the head of one the three arms (the Executive, and who can constitute or nominate or appoint a small part of the Government under the 2010 Constitution.
Ninth, Government is sometimes confused with the coercive or executive ministries or Ministries, Departments and Agencies (MDAs) like security (especially internal security) and, finance treasury. Thus other MDAs which are also part of Government wrongly refer to only these two as “the Government.” Intriguingly, commissioners in one of the constitutional commissions once declared to be in a debate v in a university conference that commissioners were not part of Government. Eighth, Government is conflated with the A-G partly because the A-G used to represent the Government in civil and criminal matters. Moreover, the powerful and long serving A-G Charles Njonjo often talked of “my Government.” Thus judges, magistrates and other judicial officers wrongly refer to the A-G or DPP as Government in a manner suggesting that the judicial officers are not Government. Even first lady (eg Mama Lucy called it “my Government”).
Eighth, some politicians mislead the people that the people are the government. There are other examples given to further define government. These are closely related to the
105 These are: Independent Electoral and Boundaries Commission, Ethics and Anti Corruption Commission, Parliamentary Service Commission, Commission for the Implementation of the Constitution, Kenya National Human Rights and Equality Commission, National Land Commission, Judicial Service Commission, Commission on Revenue Allocation, Public Service Commission , Salaries and Remuneration Commission, Teachers Service Commission, National Police Service Commission, National Gender and Equality Commission. 106 Cf Article 228 and 229 of the Constitution of Kenya 2010. 107 Henry Campbell Black, (1957) Black’s Law Dictionary, op. cit., at 545. 108 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd Ed) at 226. 109 Henry Campbell Black, (1957) Black’s Law Dictionary, op. cit., at 546. 24 conceptualization and operationalisation of the constitution and state, among others.110 They are numerous and tentatively include the following four:
1.8.1 federal v. confederal v. unitary governments 1.8.2 central or national governments v. decentralized or local governments 1.8.3 monarchical v. republican government.
111 1.8.4 Military v. civilian governments. I have noticed the following problems in defining government: First, government to mean executive.112 Second, government to mean the President or presidency. Third, some refer to the “executive” or coercive or more visible or powerful offices or agencies like (internal) security and Finance or Treasury as the government.113 Fourth, some presidents, the former Kenyan Attorney- General Charles Njonjo and even Mrs Lucy Kibaki have referred to “my government” in possessive sense.114 Some think it is better that the president refers to “my Administration,” rather than “my Government” in the ownership or the possessive sense given that even the President may only tweak the administration and in any event in consultation with Parliament and Judiciary 115 or the relevant agencies.
The terminology on government is thus often confused, conflated or obscure especially in relation to constitution, state and in comparing the various forms of governments inter se.(or among themselves).
1.9 People, Watu, Wananchi People v. persons (legalistic?); citizens, wananchi (wa kawaida), masses, peasants or (poor, middle, rich) or peasantry or hoi polloi; (lumpen) proletariat; students? What other community interests? A concept which is closely related to civil society is “people.” This may refer to the population in the definition of the liberal state. Population forms part of the definition of a state under the 116 Montevideo Convention on the Rights and Duties of States (1933).
110 …. 111 Cf typology or classification of constitutions and states in Part 6 of this essay. 112 The speakers, MPs, Judges, magistrates, and members of the executive, among others, refer to executive or executive officials, especially those in security and criminal justice, the National Treasury and Finance as the “government.” As if the former are not (part of) the government. 113 This is partly because of the raw power that these agencies exercised under the 1969 Constitution, which some still unconstitutionally exhibit under the 2010 Constitution. 114 Cf Speeches by President Uhuru Kenyatta, former Presidents Mwai Kibaki and Daniel T. Moi. 115 See Ben Sihanya (2011) “The presidency and public authority in Kenya’s new constitutional order,” Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi, at http://www.sidint.net/docs/WP2.pdf. (accessed 18/5/2015). See Ben Sihanya (forthcoming 2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa I (CODRALKA I), “The presidency and public authority in Kenya’s new constitutional order,” Chapter 3, op. cit. 116 Cf. Population in the definition of State; people in US, Kenya, who are the “people” in the African Charter on Human and Peoples’ Rights 1981, cf. See Class 1.2 (state); H.W.O Okoth-Ogendo, (1993) “Human and Peoples' Rights: What Point Is Africa Trying to Make?” In R. Cohen, G. Hyden, and W. Nagen, eds., Human Rights and 25
Civil society, people and population have different meanings in every day politics, or on the other hand, political science, history, sociology, or constitutional theory and process as well as practice.
Politicians and Government officials tend to use the term in a pejorative, heuristic and rhetorical science. For instance, Government officials tend to use “people” to mean the masses without the 117 Marxist Leninist content and in contradistinction to the middle class or the elite.
Questions that arise include: Who are the people? class? Middle class petit bourgeois?“we the people,”118 rulers, aristocrats, clergy? It is instructive that historians agree that even after decades 119 of debate, scholarship is yet to accurately secure consensus on who or what the people are. 1.10 Markets What is market? Markets mechanism? Demand and supply? Hidden hand of the market? Role of the people and state in the market?120Sub-national, national, regional and international market….economy? Are there people who are not “in the economy” David Murathe 2017/18? How does political economy relate to political economics, cultural politics, and legal sociology in Kenya and Africa? Have Constitutional law and lawyers ignored and only intestinally, rhetorically addressed market, the economy, political economy and legal sociology in Kenya and Africa? What is to be done?
1.11 Sub-typologies of State? Are there sub-typologies of state?
1.11.1 Predatory State in Kenya and Africa A predatory mean a state that promotes the private interests of dominant groups within the state (such as politicians, the army and bureaucrats) or influential private groups with strong lobbying 121 powers.
1.11.2 Patrimonial State in Kenya and Africa Patrimonialism is a form of political domination described by Max Weber in which authority rests on the personal and bureaucratic power exercised by a royal household, where that power is formally arbitrary and under the direct control of the ruler.122
Governance in Africa, Gainesville, FL: University Press of Florida, at 76. 117 There is still debate in Kenya, Nigeria and South Africa generally and in the West regarding how “people” are defined and treated by Presidents, Governments and public bodies. Are supporters of the President or Government “people” for purposes of Art 1? Art 10? Art 37? Or are their interests already catered for directly or indirectly by their consent to rulers? These relate to access to political power, socio-economic resources, opportunity and the question of participation. Issues in Kiambu, Kericho, Kisumu…etc on Governor’s decision v popular participation in 2013/2014. Some Bills and Acts have been questioned; Some governors have been threatened with impeachment because of problems of participation. 118 See the preambles to the Kenyan and US Constitutions…. 119 See review by Prof William R. Ochieng in Weekly Review of Prof Trevor Roper’s book which he and Prof BA Ogot have expressed in their books. 120 If market, state, people in (neo)liberal, weberian, neomarxist….political economy and legal sociology…. 121 …. 122 …. 26 1.11.3 Rentier State in Kenya and Africa The term rentier state is most frequently applied to states rich in highly valued natural resources such as petroleum but can also include states rich in financial instruments such as a reserve currency.123 In rentier state theory, the state derives most of its revenue from renting resources (such as oil) to foreign powers.124
1.11.4 Prebendal State in Kenya and Africa Prebendalism refers to political systems where elected officials and government workers feel they have a right to a share of government revenues, and use them to benefit their supporters, co- religionists and members of their ethnic group.125 How has prebendalism been manifested in in Kenya and Africa?
1.12 The Liberal Constitution, State and Government and Market in the Kenyan and African Context
We use economic organization (and especially the market mechanism or principle) and political organisation. The main categories of political organisations revolve around liberal v. illiberal126 v. social democracy.127
The liberal constitution, state is largely regarded as the guarantor of property rights and enforcer of contracts. It is largely based on market principles i.e. supply and demand and supply. It is supposed to have very little control role in the market. Regulation of transactions by the state or government is regarded as the exception rather than the rule or the norm.
However, in certain situations the state may intervene to correct market failure, imperfections or distortions. There are four common causes of market failure. First, abuse of market power through monopoly of monopsony. Second, asymmetrical information or informational asymmetry. This is where parties to a contract do not have equal information in terms of quality and quantity.128 129 Third, the public goods problem.
1.12.1 Economic organization under the liberal constitution, state or government and market Although the rulers of Kenya, South Africa and Nigeria are fond of calling these states liberal and democratic, the liberal states have historically been 7 to about 20, including the US, UK Germany,
123 …. 124 …. 125 Cf Prof Richard Joseph, a Scholar of Nigerian political process…… 126 Fareed Zakaria’s work…. 127 Cf Raila Odinga’s and CORD’s/ODM’s markets in the context of the 2007 and 2013 presidential election cycles. 128 Economists focus on these four main types of market failure. See Ben Sihanya (2016) Intellectual Property and Innovation in Kenya and Africa: Transferring Technology for Sustainable Development, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, especially Chapter 2 “…” . 129 The public goods problem has two components. First, the idea that public goods are largely non rival (nons). Second, that public goods are largely non excludible. See Ben Sihanya (2016) Intellectual Property and Innovation in Kenya and Africa: Transferring Technology for Sustainable Development, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, especially Chapter 2 “Conceptualisation and political economy of intellectual property and technology transfer law in Kenya and Africa,” 43-81. 27 Western Europe, Japan, Australia and Canada.130 The economic organization of the US, UK and Germany has been characterized by economic competition. The constitution’s state’s or government’s main role is to establish a regulatory, social, economic, cultural and political system that respects (property) rights and enforces contracts. The state or government largely focuses on governance; not doing business. The market mechanism, market forces, or hidden hand of the market market is expected to allocate goods and services to the most efficient or optimal users.131
This model has been contested by left-o -centre parties like the Labour and the Democratic parties in the UK and US, respectively.132 Thus President Barrack Obama successfully sought the American state’s engagement in providing health care to Americans who opt for it or who cannot afford it, under the Affordable Health Care Act 2010 (aka Obamacare Act).133 Obamacare followed and was succeeded by supportive and unsupportive work from President Teddy Roosevelt and Bill Clinton, on the other hand, and President Donald Trump, on the other, respectively.
1.12.2 Political organisation under the neo-liberal or neo-conservative constitution, state or government Political organisation under the neo-liberal or neo-conservative constitution, state or government is also based on competition among the political actors. There is freedom of conscience, opinion, expression, association, assembly and choice generally. The free market of ideas. Individuals and parties compete for power. They are free to belong to, form, or vote for, or lead (other) individuals or political parties. Political liberties are now guaranteed by Art 38. Articles 33, 34 and 35 of the Constitution of Kenya 2010 guarantee freedom of expression, freedom of the media and access to information, respectively. Article 37 nullifies previous public order or law and order doctrines and breaks new ground and provides that
“Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”134
The neo-liberal constitution, state and government tends to be a dual – rather than a multi-party system. Although there are many parties, only Labour and the Conservative Party have been the constitutionally and politically significant in terms of presence in parliament and impact in British Constitutional Democracy.135 The Liberal Democratic Party (LDP) has been part of the
130 Thus, although Japan is in the (East) and in Asia, and Australia is in the South, they are often regarded as “Western or Northern.” 131 Cf Ronald H. Coase (1988) The Firm, the Market, and the Law, University of Chicago Press. 132 Some of these parties recognize that there are significant socio-economic and political disparities as well as marginalisation and that the constitution envisaged a facilitative, engaged and responsive state or government; not just an interventionist, night-watchman. This is how Thatcher’s administration or government was interpreted. 133 The Act was challenged by some republicans with the Supreme Court ruling is constitutional in a 5-4 decision. See Barack Obama (2015) “United States Health Care Reform: Progress to Date and Next Steps,” Vol 316, No. 5, Journal of the American Medical Association, at http://jama.jamanetwork.com/article.aspx?articleid=2533698 (accessed 25/9/2016). Chief Justice John Roberts, a George W. Bush nominee and Republican or conservative leaning was one of the 5. 134 …. 135 The 2015 British elections gave the results as published in detail in “UK General elections results in full,” The 28 third party politics and became a significant player in the 2010 British elections when they secured enough seats to the extent that whichever of the two parties they formed a coalition which would form government. They supported the conservatives.
American constitutional democracy has also been characterized by dual party politics, with the occasional independent presidential candidate. These are Republican party (Grand Old Party GOP)) and Democratic Party. Important third, and especially independent presidential candidates have been Ross Perot (1992) and Ralph Nader (2000).136
1.12.3 Neo-Marxist, socialist or socialist-oriented state and the Kenyan and African experience We use the two-pronged typology of economic organization and political organization in discussing the socialist-oriented state and government. Neo-Marxists political scientists, political sociologists, political anthropologists and legal scholars usually favour a broad definition of the state. This draws attention to the role of coercion-wielding organizations who exercise clear priority in decision-making and claim paramountcy in the application of naked or brute force to social problems within territorial boundaries.137 The Marxist state is largely a by-product of conflict in society. The state arises to resolve some of these.138 The state is apparently impartial but in actual fact the state is biased because of its class structure or content.
Prof Eugene Kamenka renders the definition of the Marxist state as follows:
“The political power of society separated from the rest of society and controlled by the ruling class of that society in its own interest. The complete obstruction of the state from society is the work of the bourgeoisie. The claim of the state bureaucracy to be a universal class serving the public interest and not sectional interests is false.139 Marx does not emphasize the independent power of the state, although his concept of the Asiatic mode of production concedes that such independent power in certain conditions is possible. His analysis of the regime of Napoleon III suggests that a stalemate in the class struggle made it possible for an adventurer to capture and 140 use the state.” The neo-Marxist state is the manager or implementer of the development plan. Contrary to the
Guardian, at www.theguardian.com/politics/ng-interactive/2015/may/07/live-uk-election-results-in-full (accessed 23/5/2016). 136 Arthur M. Schlesinger (2004) The Imperial Presidency, Houghton Mifflin Harcourt, New York. 137 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd Ed) at 507. Quote text Marx (1851-1852) The Eighteenth Brumaire of Louis Bonaparte …, excerpted in Kamenka, ibid at ….; Karl Marx and Friedrich Engels (1848) The Manifesto of the Communist, excerpted in Kamenka, ibid at ….; For a more nuanced and contextualized conceptualization of the neo-Marxist state, see Corrigan and Sayer (2018), “How the law rules; variations in same themes in Karl Marx,” Law, state and society; Issa Shivji (1995), “Ujamaa in the ideological” formation of Tanzania”...; Yash Ghai (1986) “The rule of law legitimacy and governance”.... 138 Cf the Thomas Hobbesian and the John Locke analysis on the movement from the state of nation to civil society and the problematic notion of social contract. Hobbersian and Lockean theories are summarized and discussed in Michael Freeman (2001) Lloyd's Introduction to Jurisprudence, Sweet & Maxwell, London. 139 Eugene Kamenka (ed) (1983) The Portable Karl Marx,Penguin, New York. 140 Kamenka, ibid….other quotes from Karl Marx , Kamenka…. 29 position held by critics of neo-Marxism (and vulgar or unreconstructed Marxists)141 some evidence and scholarship suggest that even in the neo-Marxist state, the state is not necessarily a committee of the ruling class and may in fact be relatively autonomous from the dominant class.142 Indeed, in Kenya and Nigeria, the tribal component is much stronger that class in state 143 and governmental exclusion, repression and exploitation.
1.12.4 Political organisation under the neo-Marxist or socialist (inspired) constitutions, state, or government The ideology and political organisation under socialist-oriented constitutions were largely hortatory on freedom of conscience, expression, association and assembly. In practice, there were structural and normative constraints including ideological indoctrination. Political party organization in a neo-Marxist or socialist state by the time the Berlin Wall collapsed in 1989 was largely monopolistic, or monolithic. These include China, Russia, (the former Union of Soviet Social Republic (USSR) or Soviet Union Cuba, Tanzania, Mozambique or Angola. Individuals had no choice but to subscribe or be bound by the policies of the Communist Party, the assumed vanguard of the revolution.
Leadership of the party, and access to state power or resources was through the party, and largely by way of selection or appointment by the party leadership. There has been no fundamental change in China or Russia, where only limited local leadership is open to party competition while national leadership is controlled by one party: the Communist Party144 Remarkably, at least 50% of the World’s population lived in states or was led by governments that claimed to be socialist.145
141 Some of these always uncritically bundle Marx with Engels and/or Lenin. They also fail to appreciate the dynamism and adaptability of the (neo) Marxist doctrine. Cf nuanced discussion in Phillip Corrigan and Derek Sayer (2006) “How the law rules: Variations on some themes in Karl Marx,” in B. Fryer. A. Hunt, D. McBarnet and B. Moorhouse (eds.) ibid 21-53. University of Warwick (1986) “The rule of law, legitimacy, and governance, Academic Press Ltd; Issa Shivji (1991) “Ujamaa in the ideological formation of Tanzania” Vol 4, Social and Legal Studies, 147-174 (Thousand Oaks, London). 142 More than 50% of the World’s population was ruled in the name of Marx at the fall of the Berlin Wall (1989). Cite Kamenka….See Frederick Taylor (2014) “The Berlin Wall: A Secret History,” Vol 57, Issue 2, History Today, at http://www.historytoday.com/frederick-taylor/berlin-wall-secret-history (accessed 6/9/2016). 143 Thus while classes in the dialectical Neo-marxist sense are still in formation, tribalism is actually fostering that class formation through state appointments, contracting or consultancies, tenderprenuership, primitive (capital) accumulation, and class consciousness. Cf Bruce Berman (1990) Control and Crisis in Colonial Kenya: The Dialectic of Domination” Eastern African Studies Series, Ohio. University Press, Athens, Ohio: John Lonsdale (1998) "The moral economy of Mau Mau: Wealth, poverty and civic virtue in Kikuyu political thought," in Berman and Lonsdale (1998) Unhappy Valley: Conflict in Kenya and Africa, University of Michigan; Yash Ghai (2016) “The promise of democracy and the reality of politics,” The Star, Nairobi, May 16, 2015, at http://www.the- star.co.ke/news/2016/01/09/the-promise-of-democracy-and-the-reality-of-politics_c1272290 (accessed 19/5/2016); Ngozi Okonjo-Iweala (2012) Reforming the Unreformable: Lessons from Nigeria, The MIT Press, Cambridge, Massachusetts 144 The Chinese Communist Party is influencing some of the policies strategies of some African political parties like Kenyatta’s TNA and Jubilee Party. The Jubilee Party says it is planning to affiliate to the Communist Party, a practice going on in other African dictatorial and tribal kleptocracies. see Justus Wanga (2016) “Jubilee looks to the Communist Party for lessons,” Daily Nation, Nairobi, 18/9/2016, at http://www.nation.co.ke/news/politics/Jubilee- looks-to-the- Communist-Party-for-lessons/1064-3385490-yy2x8x/ (accessed 25/9/2016). 145 Eugene Kamenka (ed) (1983) The Portable Karl Marx, Penguin, New York. This analysis of agency, institutions 30 1.12.5 Economic organisation under the socialist constitution, state or government
The Soviet Union (Russia), China, Cuba, Tanzania, Mozambique and Angola were historically regarded as the leading socialist or communist constitutions, states or governments.
1.13 The developing country state and the Kenyan and African experience Developing country constitutions have largely embodied the characteristics of the liberal and neo- Marxist (or socialist) state or government.146 States which are neo-or post-colonial like Kenya embody or pursue some liberal democratic and market oriented policies associated with Britain, the US, and Germany and Japan.147 They also emphasize the role of the state in the economy, on the other hand. In many situations, therefore the developing country state is a mixed economy pursuing liberal democratic and Marxist148 constitutional principles.
The search or quest for a new constitutional dispensation in Africa and particularly in Kenya seeks to rationalize and secure equity regarding the role of the state in the economy and particularly to address the problems of primitive accumulation, oppression and ethnic exclusion by state or political elite.
Moreover, the quest for constitutional democracy also seeks to end or reduce authoritarianism and secure liberties through the rule of law, due process, human rights, social justice and participation. Briefly, the search for a new constitutional dispensation in Kenya was the quest for economic, political and social egalitarianism equity and efficiency.
1.13.1 Economic organisation under the developing country constitution, state or government: Kenya, Nigeria and South Africa The (African) developing countries focused on this study have had a chequered history and development trajectory in terms of economic organisation.149 Even within the East African Community (EAC 1),150 the experiences have been varied. Kenya started off at independence in 1963 as an aspiring liberal economy oriented to the West, and especially the British economy model of state managed rather than the US laissez-faire economy.151 This was in spite of the and social structures relates closely to Marx Weber theory of legitimacy or legitimate domination or authority as well as Kelsen’s pure theory of law, the grundnorm, validity, and revolutionary legality. Bruce Berman and John Lonsdale have problematised agency and structure or social determinism in their two-volume study. See Bruce Berman and John Lonsdale (2001) Unhappy Valley: Conflict in Kenya and Africa, Vol & Vol 2, University of Michigan For a very close study of agency structure in Kenya, See John Lonsdale (1998) “The moral economy of Mau Mau: wealth, poverty and civic virtue in Kikuyu political thought," in Berman and Lonsdale (1998) Unhappy Valley: Conflict in Kenya and Africa, op. cit. 146 Liberal v. socialist are not from categories in the Cold War period. 147 Cf the clause in many African constitutions, including Kenya’s section 70 of the 1969 Constitution. See Ben Sihanya (2013) “Public participation and public interest lawyering under the Kenyan Constitution: theory, process and reforms,” Vol 9 (1) (2013) Law Society of Kenya Journal 1-32. 148 In the sense of populist. 149 Another challenge regarding the generic or Ghai typology is that China may be placed under (erstwhile) neo- marxist and developing country constitution, state or government at the same time. 150 There has been EAC 1 and EAC 2. EAC 1 was established in 1967 and consisted of Kenya, Uganda and Tanzania. EAC 2 was established in 1999 and consists of Kenya, Uganda, Tanzania, Rwanda and Burundi. Is EAC 3 in the offing? To include South Sudan (wholly) and the Democratic Republic of Congo (DRC) (pending)? 151 Colin Leys (1975) Underdevelopment in Kenya, the Political Economy of Neo-Colonialism, 1964-1971, Heinemann 31 Kenyatta rhetoric that Kenya was part of the Non-Aligned Movement (NAM) led by his friend 152 Joseph Tito of (former) Yugoslavia.
Ideological, political and personality clashes between the group led by Kenyatta and Vice President Jaramogi Oginga Odinga led to the formulation by Kenyatta153 of Sessional Paper No 1 of 1965 on African Socialism and its Application to Planning in Kenya. This policy paper established a mixed economy in at least two senses. First, mixed in terms of Government control and/or management of the “commanding heights” of the economy through parastatals and private sector participation. Second, mixed in the sense of agriculture, industry, commerce and services. But there were significant clauses that focused attention on “high potential areas” and excluded 154 cultures that were not supportive of development.
1.13.2 Political organisation under the developing country constitution, state and government: Kenya, Nigeria and South Africa Kenya, Uganda, Tanzania, Nigeria and South Africa have gone through at least three phases in political organisation since Ghana became independent in 1957, Nigeria in 1960 and Kenya in 1963. This relates mainly to freedom of (political) expression, freedom of the media, and freedom to join, contest in, and form a political party.
The first phase was the period of de jure and de facto multipartyism, even though it was largely de facto dual partyism. In Kenya, the Kenya African National Union (KANU) and Kenya African Democratic Union (KADU) were predominant. In Nigeria it was three parties led by Dr Nnamdi Azikwe (Nigeria People's Party (NPP)) and by Chief Obafemi Awolwo (Action Group) and Sir Tafawa Balewa (Northern People's Congress 155 (NPC).
The second phase was marked by multiparty de jure and single party de facto. The pioneers were Dr Kwame Nkrumah’s Convention People's Party (CPP), Julius Nyerere’s Tanganyika African National Union (TANU) and Jomo Kenyatta’s KANU. Yoweri Museveni introduced a curious and personalized or patrimonial model in the 1980s: the non-party state.
The third phase is the re-introduction of multi-partyism – de jure and de facto in the early 1990s.
Educational Books. 152 Cf Group of 77 states that belonged to the Non Aligned Movement (NAM) which became 111. They were led by President Tito of Yugoslavia and President (Mwalimu) Julius Kambarage Nyerere of Tanzania. cf Mannaraswamighala Sreeranga Rajan (1990) Non-alignment and Non-aligned Movement, Vikas Publishing House, New Delhi, India. 153 Actually this was led by Mwai Kibaki and John Michuki. 154 The Kenyan territorial nationalism that had guided the independence structure was being dismantled by Kenyatta’s “ethnonationalist” state. See E.S. Atieno-Odhiambo (2002) “Hegemonic enterprises and instrumentalities of survival: Ethnicity and Democracy in Kenya,” African Studies Review, 223- 249; E.S. Atieno-Odhiambo, Hegemonic enterprises and instrumentalities of survival': Ethnicity and democracy in Kenya, in Bruce Berman, Dickson Eyoh & Will Kvmlicka. Ethnicity and Democracy in Africa, James Currey, Oxford, 167- 182. Githu Muigai (2004) “Jomo Kenyatta & the rise of the ethno-nationalist state in Kenya,” in Bruce Berman, Dickson Eyoh & Will Kymlicka (eds), Ethnicity and Democracy in Africa, James Currey, Oxford & Ohio UP, Athens pp 200-217. 155 These parties were partly dominated by the relevant ethnic groups: Igbo, Yoruba, and Hausa Fulani, respectively. See Chinua Achebe (2012) There was a Country: A Personal History of Biafra, Memoir, Penguin, London, United Kingdom; Chinua Achebe (1984) The trouble with Nigeria, Heinemann, London, United Kingdom. 32 These phases were marked by appropriate changes in the text or practice of the Constitution in Kenya, Uganda, Tanzania, Nigeria and South Africa. The reversal of the gains is the fourth phase, 156 with serious implications for constitutional democracy in the Kenyan and African nation state.
1.14 Nation in Kenya and Africa A nation refers to the population within, sharing a common culture, language, and ethnicity with a strong historical continuity.157 This manifests itself in most members in a sentiment of collective, communal identity.158 Nation was largely a term in cultural studies, anthropology, sociology, and political science. It means ethnic, linguistic, cultural or political group or community.
Scholars argue that most ethnic groups are real and historical, constructed or imagined or invented, or are a product of a combination of these. This was mainly done by politicians or the political elite, missionaries,159 and academics, who emphasized common origin, current challenges and future destiny.160 Analyse Kikuyu, Luo, Luhya, Kalenjin, Mijikenda, Maasai They are real, v constructed and imagined? Some have been imagined or constructed through myths and legends or fiction.
First, the Kikuyu who have (mis)ruled Kenya for 33 (15+11+7) years since 1963 through 3 Presidents. The myth of Kikuyu creation has been presented as history.That Murungu or Ngai created Gikuyu na (and) Mumbi and placed them in Mt Kirinyaga or Mukurwe wa Nyagathanga in Murang’a as ancestral home. That Gikuyu na Mumbi then had (perfect) 9 daughters. Any male? And that the Kikuyu had a centralized Government with a king and with Wangu wa Makeri as ruler of the entire tribe.That female Government was dictatorial and overthrown through phallic power.161 Fact versus myth: Like all Kenyan tribes, Kikuyu migrated into Kikuyuland. Only two Kenyan tribes are indigenious: Dorobo, Njemps.162 Only the Wanga were partially cephalous or
156 See Ben Sihanya (2016) “Constitutional change of Government in Kenya: Constraints and Opportunities,” The Advocate magazine, the Law Society of Kenya, 52-53. 157 People or population are the key variables in definitions of state and constitution: the state, politics, governance or the law and constitution are primarily about people; human beings. They are the main subject (not object). 158 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd Ed) at 360. 159 Eg Bible translation – one standardized one Bible per tribe..... 160 See Benedict Anderson (1993) Imagined Communities: Reflections on the Origin and Spread of Nationalism, Verso Books, New York, London New York; Benedict Anderson (1983) Imagined Communities, at https://www2.bc.edu/marian-simion/th406/readings/0420anderson.pdf (accessed 20/5/2016). On the construction of the relevant Kenya tribes. See Godfrey Muriuki (19..) A History of the Kikuyu Kikuyu; Bethwel.A. Ogot (2012) Kenyans, who are we?– (Luo); Gideon S. Were John Oligo (Luhya); see also two books luhya nation. William R.Ochieng’ – (Abagusii); ES Atieno Odhiambo (various ethnic groups); ES Atieno Odhiambo in Ogot &Ochieng’ “the invention of Kenya; Positive and negative ethnicity…. E.S. Atieno Odhiambo (2004) “Hegemonic enterprises & instrumentalities of survival : Ethnicity and democracy in Kenya,” in Bruce Berman, Dickson Eyoh and Will...ESAO (...) Siaya: The historical anthropology . of an African landscape cite Luo customs, traditions and practices….Kenyatta Facing Mt Kenya, Oginga Odinga (1986) Not yet Uhuru, East Africa Publisher, Nairobi ...... Paul Mbaya...Luo Kitgi gi Timbegi...... Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens 167-182 161 Those myths are in Jomo Kenyatta, Facing Mount Kenya…. 162 BA Ogot, Kenyans, who are we, op. cit. ?..... 33 centralised.
Second, myth of centralized rule, even a King Kikuyu, Wangu wa Makeri (semi mythical), Fact and history: Like Kenyan tribes, the Kikuyu, we acephalous. Thus in Facing Mt Kenya Jomo Kenyatta also formally launched or invented the (m)uthamaki which Uhuru Kenyatta operationalized and contextualized about 2012 and especially from about 2012 and particularly during the 2013 and 2017 elections, and in administration and governance.
Third, the myth of linguistic and cultural homogeneity. There were among the Northern and the Southern Kikuyu. Linguistic homogeneity has evolved through interactions and via the work of missionaries , a common Bible which sought to standardize Kikuyu language, schools, increased and commerce163 through markets, improved infrastructure and communication….
Second, the Kalenjin (mis)ruled Kenya for 24 years and have had a powerful DP for 7 years major Molize whose antidemocratic legacy is still being felt. The myth of common origin. The myth of common historical challenges. Fact: there are at least 15 Kalenjin (sub) tribes: myth by Moi and historians.
Third, the Luo are descended from different ancestors. Not all come from Ramogi…. In some cases, they assimilated Bantus.164Remarkably, tribal myths like Lwanda Magere have been treated as such: myths and not history.165 This is unlike Jomo Kenyatta, Ngugi wa Thiong’o, and some Kikuyu(ist) historians or historical anthropologists who treat myths as history.166
In summary, none of the Kenyan tribes is “pure.” Moreover, many are in mixed relationships or are a product of such. But some identify more with the tribe that has greater access to economic resources and political power. Let us build Kenya.
Increasingly, and significantly, Kenyan and African constitutions, statutes and emblems or symbols use the term nation as if they are conterminous with state. For instance, the Kenyan Constitution refers to nation (taifa), and national values and principles. Speeches by politicians also focus on Kenya as a nation.
1.15 “Nation state” in Kenya and Africa A nation refers to the population within, sharing a common culture,167 religion?168 language, and ethnicity with a strong historical continuity. This manifests itself in most members in a sentiment
163 Jomo Kenyatta, Ngugi wa Thiongo, Godfrey Muriuki, Peter Mwangi Kagwanja, Mutahi Ngunyi etc. 164 BA Ogot (ed), 1976a, WR Ochieng (1976) “Transformation of a Bantu Settlement into a no Ruothdom (Chief- dom)”…. 165 Onyango Ogutu and Adrian Roscoe, “Keep my words: Luo oral literature. 166 See Chapter 2 of CODRALKA “Constitutional founding of the Kenyan and African state,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 167 Hence the significance of values, principles and policies in the context of constitutional or legal rules. 168 E.g. African traditional religion, Christianity, Islam, Hindu…
34 of collective, communal identity.169 Nation and hence the national question is largely an anthropological, sociological and political term. It is also used in literary and cultural studies or cultural politics. It means ethnic, linguistic, cultural or political group or community.
Scholars argue that most ethnic groups are real but are also invented, constructed or imagined. This was or is mainly done by the political elite and academics, scholars or intellectuals who emphasize(d) three key ingredients of nationalism: common origin, current challenges and destiny 170 or aspirations.
A nation-state is sovereign entity dominated by a single nation.171 A nation may suggest a country or a state where there is a high degree of ethnic, cultural, linguistic and religious homogeneity. Thus, Somalia was treated as a nation state until 1991 when it collapsed during the presidency of 172 dictator Siad Barre.
The term nation and nation state are not coterminous although many use them as if they are identical. Kenyan politicians political science and law scholars of Kenya increasingly use the terms as if they are coterminous with state.
Remarkably, nation is now an acceptable reference to the state, self-governing territory or country. First, the Constitution of Kenya 2010 now uses it interchangeably with state.173 Second, the concept of nation is intended politics, literature, sociology, anthropology, and legal academy to help foster nation building, especially in ethnically divided states like Kenya, Nigeria, South Africa, Ghana, Uganda.174
169 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York, (3rd Ed) at 360. 170 See Benedict Anderson (1983) Imagined Communities, at https://www2.bc.edu/marian- simion/th406/readings/0420anderson.pdf (accessed 20/5/2016). On the intellectual, cultural and political construction of the relevant Kenyan ethnic communities. See Godfrey Muriuki (1974) “A History of the Kikuyu, 1500-1900,” Oxford University Press, Nairobi. B.A. Ogot A History of the Luo-Speaking people of East Africa…. ESAO; Gideon S. Were (1967) A History of the Abaluyia of Western Kenya: 1500-1930, East African Publishing House, Nairobi, Kenya: ; Ben Kipkorir (1973) The Marakwet of Kenya: A preliminary study, East Africa Literature Bureau; William R. Ochieng’ (1974) A Pre-Colonial History of the Gusii of Western Kenya: A.D. 1500-1914 East African Literature Bureau, Nairobi, Kenya; ES Atieno Odhiambo (various ethnic groups); ES Atieno Odhiambo (1995) in Ogot & Ochieng’ (ed) Decolonization and independence in Kenya, James Currey Publishers Ltd, United Kingdom; Ogot & Ochieng (eds) (2000) Kenya: the making of a nation: A hundred years of Kenya's history, 1895- 1999, Institute of Research and Postgraduate Studies, Maseno University, Kenya. 171 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York (3rd Ed), at 360. 172See Ben Sihanya (2014) “The Government approach to security from a constitutional perspective,” Concept paper presented to a joint symposium between the University of Nairobi and USIU at the United States International University-Africa (USIU) on the Government Approach to Security from a Constitutional Perspective, Nairobi on June 20, 2014, on file at Innovative Lawyering (IL) & Sihanya Mentoring (SM), Nairobi & Siaya, Kenya. 173 See, for instance, the Preamble (indivisible sovereign nation); Art 1 (sovereignty at national and county level); Articles 4 and 10 (national values...); Article 6 (national state organs); Article 7 (national language); Article 9 (national symbols: national flag, anthem, court of arms, public seal, public holidays. See also Kenya’s national anthem “Oh God of all creation /Bless this our land and nation, Justice be our shield and defender ” 174 E.S. Atieno Odhiambo (2004) “Ethnic cleansing and civil society in Kenya 1969-1992,” 22:1 Journal of Contemporary African Studies 29-42; contemporary ethnic colonialism, aristocracy…Cf. Ben Sihanya (2014) “The 35 1.16 Nationalism175 and nationhood (vis-à-vis statehood and the “national question”176 (cf citizenship; ethnicity...tribalism...) Nationalism has been divided into three territorial (or state-wide) and civic citizenship; ethnic nationalism177 and nationalism (as exceptionalism or populism) in international relations, 178 including diplomatic and consular relations.
First, territorial nationalism was probably at its peak in the struggle for independence in Kenya, Uganda, Tanzania, Nigeria, South Africa.
Second, positive or moral ethnicity179 versus negative tribalism. Nationalism was described by Ernest Gellner as follows:
“It is a primarily political principle, which holds that the political and the national unit should be congruent.”180
It is a project intended to build a nation or nation state out of the diverse ethnic, linguistic and cultural differences. It may take two major forms: ethnic or cultural nationalism (or positive ethnicisation or tribalism);181 and, political or politicized ethnicity or nationalism (or negative tribalism).
In certain contexts, this may promote the virtues of one’s kinship, ethnicity or other sense of belonging without compromising the national interest or public good. Political ethnicity or legacy of Kamaliza, the Terminator, / or Kenyan liberators confront Pan Thaguci control,” Innovative Lawyering & Sihanya Mentoring, Nairobi, Siaya, at http://innovativelawyering.com/blogs/87-the-legacy-of-kamaliza-the- terminator--or-kenyan-liberators-confront-pan-thaguci-control. 175 Cf ethnic nationalism; territorial nationalism, both within the (nation) state; vis-avis nationalism in international law and relations (Nazi nationalism; Trumps, Americas first (and only) Mobutu’s “authenticity”...cf Sankara on Burkinabe nationalism, Patrice Lumumba on Congolese self determination; This is an important discourse in constitutional theory and process, identity politics, cultural politics, sociology, and political science. See also Chapter 2 Constitutional founding of the Kenyan and African State See ESAO E.S. Atieno Odhiambo (2004) “Hegemonic enterprises & instrumentalities of survival : Ethnicity and democracy in Kenya,” in Bruce Berman, Dickson Eyoh and Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens 167-182; Githu Muigai Jomo Kenyatta...... 176 Cf Shivji; Congolese Scholar in Issa Shivji (ed) state and constitutionalism: African Debate in Democracy..in Nyong’o (1987) (ed) Popular Struggles for Democracy in Africa. See the national question and the crisis of instability in Africa; Lenin, Halin. Soyinka, ESAO(….), Marxism and the (unresolved) national question (in S.A, Nigeria, Kenya..) 177 See BA Ogot, Kenyans: Who are we?, op. cit. ESAO “Hegemonic enterprises,” (infra); John Lonsdale, “The moral economy of Mau Mau: Wealth, poverty and civic virture in Kikuyu political thought,” Unhappy valley: conflict in Kenya and Africa 2 (1992): 315-504; Steven Chege, “Ethnic and civic citizenship in Kenya; W.R. Ochieng...... 178 Eg Nazi and Aryan nationalism under Adolf Hitler; US nationalism under George W. Bush, Trump (“America First,” or “only”? What of his dealings with or allegiance to Putin and Russia eg Roger Stone, Michael Cohen cases and testimony....Trump’s Anti Mexican, anti African sentiments eg “shithole” countries...... 179 “moral ethnicity” has been conceptualized and contextualized by John Lonsdale, ES Atieno Odhiambo, and other scholars. 180 Iain McLean & Alistair McMillan (2009) Oxford Concise Dictionary of Politics, Oxford University Press, New York (3rd Ed) op. cit, at 357. 181 The Head of State was expected to be the father of the nation. Nyerere, Senghor and Mandela performed this role relatively well. Jomo Kenyatta, Mobutu Sese Seko, Iddi Amin, Obafemi Awolowo, Nnamizi Azikiwe, Sani Abbacha and Jacob Zuma and their successors were largely fathers of their tribes, relatives and friends. 36 tribalism involves foisting one’s ethnicity above other ethnic identities. It invokes ethnic discrimination. It can be used in an exploitative, dominating, hegemonic, intimidating or 182 oppressive manner.
The decolonization process, or the struggle for independence and self-government especially from the 1940s, marked a turning point in Kenya African nationalism.183 At independence and after the President or Prime Minister and head of state was also referred to as the father of the nation in Kenya, Tanzania and other African states; the president and the state were expected to build the nation. The struggle for the benefits of independence have been undermined through negative 184 ethnicity.
1.17 Another Typology on the People, Sovereignty, Constitution, States, Court? There is another three pronged typology on Constitutions and States that needs to be reviewed in light of the discourse in this Chapter: neo liberal, ethnic, and consociational constitutional 185 democracy. First, the neo liberal state or constitution has been discussed here. Second, the ethnic constitution or state….Third, the consociational constitution and state relates to negotiated or mediated constitutional democracy
1.18 Conceptualizing constitutional interpretation, construction and translation in Kenya and Africa What are the sources of Constitutional law in Kenya and Africa? What are the sources of law in Kenya and Africa? Both are significant questions in sub-national, national, supra-national, transitional and international and comparative constitutional, regulatory and administrative law in Kenya and Africa. Do the Kenya and Africa Constitutions on states enumerate the sources of constitutional regulatory and administrative law?
182 E.S. Atieno Odhiambo (2004) “Hegemonic enterprises & instrumentalities of survival : Ethnicity and democracy in Kenya,” in Bruce Berman, Dickson Eyoh and Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens 167-182; Githu Muigai (2004) “Jomo Kenyatta & the Rise of the Ethno-Nationalist State in Kenya,” in Bruce Berman, Dickson Eyoh and Will Kymlicka (eds) Ethnicity & Democracy in Africa, James Currey, Oxford, Ohio University Press, Athens, 200-217; Ben Sihanya (2011) “Reconstructing the Kenyan Constitution and State: Lessons from German, American and African Constitutional Democracy,” Vol 6 No.1, Law Society of Kenya Journal, 1-35; There have always been issues about ethnical hegemony in appointments etc. cf. Benard Bii & Denis Lubanga (2014) “Uhuru tours Rift to quell URP protests over the jobs, Daily Nation, Nairobi, 29/5/2014, at 1. 183 Wanyubari Maloba in Ochieng & Ogot; ESAO; Lonsdale; Ngugi Detained: A writers prison diary..; Kinyatti; Kipkorir…; Peter Mwangi Kagwanja (2012) Kiraitu Murungi: An Odyssey in Kenyan Politics, East African Educational Publishers, Nairobi. 184 See Mboya, “We in Kenya should not take it for granted that we are going to have ..lasting unity without. being prepared to work for it.” Cited in CODRALKA 1 and CODRALKA 2. See also Mboya, The Challenge of Nationhood;.Nyong’o (1989) “State and Society in Kenya: The disintegration of the Nationalist Coalitions and the Rise of Presidential Authoritarianism, 1963-78,” African Affairs, Vol. 88; Ben Sihanya and Duncan Okello (2010) “Mediating Kenya’s post-election crises: the politics and limits of power sharing agreement,” Chapter 7 in CODRALKA I. 185 Yash Ghai (-) A Journey Around Constitutions. cf also Colonial Constitutions, independence constitution, post- communist constitutions is the new wave of democratization …. 37 1.18.1 Constitutionalizing sources of law in Kenya and Africa186 Instrument-based; value- based Constitution, statutesTrans-national agreement Customary international law Rules and regulations Admin procedures and processes African customary law Hindu law (not in constitution) but not in Judicature Act (Act) Islamic law (within constitution) not in Judicature Act (Act)
Article 2 of the 2010 Constitution of Kenya states: “(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. (2) No person may claim or exercise State authority except as authorised under this Constitution. (3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. (4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. (5) The general rules of international law shall form part of the law of Kenya. (6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
Section 3 of the 1969 Constitution provided: “This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void
Provided that the provisions of this section as to consistency with this Constitution shall not apply in respect of an Act made pursuant to section 15A (3).”
Section 3 of the Judicature Act on the mode of exercise of jurisdiction provides: “(1) The jurisdiction of the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and of all subordinate courts shall be exercised in conformity with— (a) the Constitution; (b) subject thereto, all other written laws, including the Acts of Parliament of the United
186 See Art 2, 2010 Constitution; section 3 1969 Constitution as amended 2008 ; section 3 of the Judicature Act; V.E Wambui Otieno v. Ochieng Ongo & Omolo Siraya (1987) (SM Otieno case)….HWO The place of customary law in Kenyan legal system revisit; and old debate revisited, in JB Ojwang & JNK MUgambi (eds) The SM Otieno case: Death and Burial in modern Kenya; David W. Cohen & ES Atieno Odhiambo (1992) Burying SM: The Politics of knowledge and the sociology of Power in Africa; Interpretation and General Provisions Act, Cap 2; Statutory Instruments Act. 38 Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:
Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.”
1.18.2 Canons of Constitutional Interpretation, Construction and Translation in Kenya and Africa English canons of interpretation US interpretative methodology; text, structure, history…. Constitutional interpretation in Kenya and Africa The Anglo-American tradition on constitutional and statutory interpretation in Kenya and Africa Central – JK values as constitutional interpretation and governance Kenyan values and constitutional interpretation
1.18.3 Constitutional interpretation and international law
In a case where an international treaty that has been ratified in Kenya and the Constitution have different provisions on the same matter, which one should prevail? What would be the ruling in Okunda v. Republic187 if it was to be judged based on the 2010 Constitution of Kenya 2010?
First, according to Article 2(6) of the Constitution of Kenya 2010, any treaty or convention ratified shall form part of the law of Kenya. In the case of Okunda v. R, the court would have ruled in favor of the EAC since the provisions of the treaty apply and form part of the law of Kenya.
Second, what happens when there is a conflict between provisions an International Treaty and a Municipal law? Just like International customary law, general principles of law and decisions from the International Court of Justice (ICJ), treaties and conventions also form major part of international law.
A treaty is an agreement between two or more countries, where the parties agree to be obliged to adhere and enforce the said agreement.188 In most instances, a treaty is formulated in order to prevent a certain conduct or with an aim of increasing relations between countries. The Constitution of Kenya 2010 incorporated treaties and convention ratified by Kenya as part of Kenyan law. A good example is the United Nations Convention against Corruption, which Kenya ratified in 2003.
The Vienna Convention on the Law of Treaties provides that a country cannot invoke the
187 Okunda v Republic (1970) KLR ….. 188 …. 39 189 provisions of its internal law as justification for its failure to perform.
When a country ratifies a treaty it must ensure that the treaty is in conformity with the internal law, so as not to invoke the idea that it’s a violation of the internal law, thus failing to meet the obligations of the treaty.
The treaty will prevail if there is a direct conflict between the provisions of a treaty and the internal law
Just like the other nations which were British colonies, Kenya had been a dualist country by default. The 2010 Constitution has since brought a controversial debate if not a lacuna in the law as far as the hierarchy of international law is concerned. Article 2(5)(6) suggests that all general rules of international law shall form part of the Kenyan law and that any treaty or convention ratified by Kenya shall form part of the Kenyan law. These articles strongly place Kenya as a monist state.
On the other hand the treaty making and ratification act places Kenya as Dualist state, this is to mean that a treaty after ratification needs to be enacted by an Institution before its domestic use. This therefore means that Kenya is neither a dualist nor a monist state. There also arises the question on who is to ratify these treaties. The President has assumed that role but in light of the the principle of separation of powers, it seems that ratification of a convention should not be role allocated to one institution but all inclusive, keeping in mind the need for inclusivity of a people in making laws.
See Treaty and Ratification Act Sec 7(b)(ii) 7 (Approval by Cabinet)
“Where the Government intends to ratify a treaty, the Cabinet Secretary of the relevant State Department shall, in consultation with the Attorney-General, submit to the Cabinet the treaty, together with a memorandum outlining-
(b) any constitutional implications including-
(ii)That the treaty is consistent with the Constitution and promotes constitutional values and objectives”
The court on Okunda would have ruled against EAC because if the treaty was unconstitutional from the onset it shouldn't have been allowed to pass if due process was observed as provided for in the Treaty making and Ratification Act.
See also Sec 8(9) of the Act:
“The National Assembly shall not approve the ratification of a treaty or part of it if its
189 Under article 27 read with article 46 of the VCLT 1969….See Shaw….International Law….D.J. Harris (….) Cases and Materials in International Law….Antonio Casese…. 40 provisions are contrary to Constitution, nor shall the House approve a reservation to a treaty or part of it that reservation negates any of the provisions of the Constitution even if the reservation is permitted under the relevant treat.”
1.19 Human rights and the Bill of Rights in Kenya
This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Human rights and the Bill of rights in Kenya,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya.
1.19.1 Conceptualising Human rights and the Bill of rights in Kenya There is at least a five pronged typology on human rights. First, human rights are closely related to natural rights, fundamental rights. The second and third categories are also referred to as constitutional or legal rights.190 Human rights are rights guaranteed to all human beings, irrespective of nationality, citizenship, tribe, gender or age.
Second, there is a debate on universality on human rights.
Third, indivisibility of human rights.
Fourth, four generations of rights. Fifth, inviolability of human rights. The national and transnational Bill of Rights codifies and constitutionalizes human rights in Kenya, Africa and globally.
The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights 1948, has been reiterated in the entire International Bill of Rights191 numerous international human rights 192 conventions, declarations, and resolutions.
What are the four generations of human rights? What is the context of everone? Which regions or ideologies informed their introduction international law? How have those ideologies promoted or compromised those rights?
Generations of rights: First, civil and political. Promoted mainly by capitalist west. Second, economic. Mainly Soviets...especially through political rhetoric not practice. Third, group or communitarian rights. Promoted mainly by Africa. Cf clan, corporate? Parties Fourth, LGBTQI – The myth that they are unAfrican.
190 Cf. Issa Shivji The Concept of Human Rights…. 191 The international Bill of Rights consists of UDHR, ICCPR, ICESCR.... 192 United Nations Office of the Commissioner for Human Rights, at http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx (accessed 21/2/2013). 41 1.19.2 Human Rights in Kenyan and African Poetry193
Cf. The Revolt of the Children of a Lesser God, Poem by Dibussi Tande on Black Power following the killing of Freddie Gray, a black American at Baltimore; NTV Documentary Children of a lesser God following the massacre of 148 students at Garissa University College.
1.19.2.1 Black Power All that glitters’ not gold Goes the saying of the old. / The city of angels Has unearthed its mongrels The beautiful sun city Has become ugly sin city / The legendary Hollywood Has exhibited its rotten wood Infested with bugs of racism And ants of narcissism. / All its glamour Hides nothing but rancor. It’s oppressed have risen Calling the oppressors to reason, / Matching racist power With people's power. The children of a lesser god Have pulled out their swords; / Terror’s unleashed As anger’s released People’s fury unfurls As the drama unfolds / Hurricane Rodney Is gone loony The haughty angel city Is just another burnt out city / Crippled by the cataclysmic echoes From its furious ghettos And by that ultimate power Street power / People's power Black power!!! By Dibussi Tande Integrate Poems and poetic expressions which include: Marjorie Macgoye “A freedom song” (Atieno yo); Jagjit Sing “Portrait of an Asian as an East African”….
There are debates on inviolability (Art 4, ICCPR; Art 25 2010 Constitution); universality v. cultural relativism and indivisibility. (Arts 24, 25, 2010 Constitution). There is also debate on 194 national v International protection of rights.
Prof Makau Mutua, a Kenyan human rights scholar, opines that the human rights corpus is defined by a variety of pathologies both of choice and substance—that are limited and limiting.195 This is because human rights seek to regulate the space between the state and the individual, but ignores the space between individuals and other individuals. This inaccurately equates containment of state despotism with attainment of human dignity.196
193 Jared Angira (1996) “The siege of Ramogi,” in David Cook & David Rubadiri (eds) Poems from East Africa, East African Publishers, at 8. Jag Jitsing Portrait of an Asian as an East African, Gidi Gidi Maji Maji, Unbwogable 194 Two extremes: Has Kelsen and others argued that international law is international politics, with dire consequences for international human rights law; the primacy of constitutional and national or rights regime ..... Is it monism and/dualism? H.W.O. Okoth Ogendo (1975) “National implementation of international responsibility: some thoughts on human rights in Africa” vol 10, East African Law Journal, Cent. Afri. J. Pharm. Sci, 60-66. Chapter V of 1969 Constitution…. Chapter IV of 2010 Constitution…. 195 Makau Mutua (1996) “The ideology of human rights,” Vol 36 Virginia Journal of International Law Association 589. Prof Mutua is a Kenyan and a law professor at SUNY, USA. 196 Makau Mutua (2008) “Human rights and powerlessness: pathologies of choice and substance,” Vol. 56, Buffalo Law 42 1.19.3 LGBTI:197 The fourth generation in the Bill of Rights: Same sex relations, civic unions198 Some leading judgments of the High Court of Kenya that have helped operationalise the Bill of Rights especially in the context of contested ethical, moral, religious and social values and principles.
On April 24, 2015, the High Court decided that members of a lesbian, gay, bisexual and transgender (LGBTI) rights group could formally register their organization. The three-judge High Court bench composed of Justice Mumbi Ngugi, Justice George Odunga, and Justice Isaac Lenaola ruled that the NGO Board’s decision violated article 36 of Kenya’s Constitution.199Does the Kenyan Penal Code criminalise gay and lesbian organizations?200
Discuss and compare to Kenya, Uganda, South Africa and Nigeria: US Supreme Court ruling (5- 4 vote) that the Constitution legalizes same-sex marriage.201 In Kenya, the debate with regards to same sex marriage has been ongoing. Some scholars like Makau Mutua have always asserted that indeed, the Constitution of Kenya 2010 permits and protects same sex unions.202 In 2014, the Ugandan Parliament passed a law which was dubbed “kill the gays” law. The Uganda Anti Homosexuality Act, 2014 sought to prescribe harsh punishments against gays.
The state of Michigan, Kentucky, Ohio and Tennessee define marriage as a union between one man and one woman.203 The petitioner in Obergefell et al v. Hodges, Director, Ohio Department of Health, et al. were 14 same-sex couples and two men whose same-sex partners were deceased. They filed suits in Federal District Courts in their home states, claiming that the respondent state officials violated the Fourteenth Amendment204 by denying them the right to marry or have
Review 1027. 197 The “I” is sometimes “Q” for queer…. 198 What are the issues? How has the administrative justice system addressed them? Being sexual relations, marriage or civic union, work eg in the military (cf don’t ask, don’t tell ) 199 Eric Gitari v. Governmental organizations Co-ordination Board &4Others [2015] eKLR. 200 The African commission on Human and People’s Rights has granted observer status to the non-governmental Coalition of African Lesbian s (CAL) on April 25, 2015. This group has the mandate to fight for the rights of lesbians and bisexual women. The group had in 2010 been refused observer status by the Commission. According to the Human Rights Watch, same-sex conduct is outlawed in 35 African countries. Cf. the “yes” vote in Ireland’s referendum on 22/5/2015 that guarantees marriage equality and the right to marry without distinction as to sex or sexual orientation. Ireland is the first country in the world to endorse marriage equality by popular vote and has gone forward to enshrine it in the Constitution. 201 Obergefell et al v. Hodges, Director, Ohio Department of Health, et al. Supreme Court of the United States, decided June 26, 2015. Consider the role of Justice Kennedy in maintaining a delicate balance between (social) liberals and conservatives. Hence the fierce battle, anxiety and debate when he left and was being replaced by Justice Kavanaugh in 2018). The fear was and is that SCOTUS would reverse Roe v Wade. This would have repercusions in Kenya and other African states – eg a (permanent) US foreign policy to discount and defund reproductive health, abortion..... 202 Makau Mutua (2010) “Why Kenya’s new Constitution protects gays,” The Daily Nation, Nairobi, 10/12/2018, at https://www.nation.co.ke/oped/opinion/Why-Kenya-new-Constitution-protects-gays-/440808-1070772- rd5rk0/index.html (accessed 10/12/2018). 203 Article 45(2) of the Constitution of Kenya; Article 31(3) of the Constitution of Uganda. 204 The 14th Amendment to the U.S. Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States—including former slaves—and guaranteed all citizens “equal protection of the laws.” 43 205 marriages lawfully performed in another state given full recognition.
The Fourteenth Amendment of the US Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State inclusion; eg public display of affection (PDA) accommodations..) Justice Anthony M. Kennedy who wrote for the majority in the decision argued that
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater 206 than onces they were.”
In dissent, Chief Justice John G. Roberts said the Constitution had nothing to say on the subject of same-sex marriage. Chief Justice Roberts wrote,
“If you are among the many Americans - of whatever sexual orientation - who favor expanding same-sex marriage, by all means celebrate today’s decision.” “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to 207 do with it.”
An atheist group sought registration in Kenya.208 Part of the preamble states: “We, the People of Kenya, acknowledging the Supremacy of the Almighty God209 of All creation210…”
The Registrar, in refusing to register the group cited the preamble of the Constitution, specifically the foregoing part The Registrar’s argument was that the Preamble of the Constitution recognises the supremacy of God Almighty.211 The atheists group’s position was that there is a substantive Bill of Rights under
205 Ibid. 206 Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. Supreme Court of the United States, decided June 26, 2015. 207 Adam Liptak (2015) “Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide,” New York Times, Washington, 26/6/2015, at http://www.nytimes.com/2015/06/27/us/supreme-court-same-sex- marriage.html?_r=0(accessed 30/9/2015). 208 Atheist in Kenya & Another v. The Registrar of Societies & 2 Others, Petition No. 308 of 2016. 209 In the USA, there have been various attempts through litigation to challenge the inclusion of the words “In God we Trust” in American dollar bills. The courts in rejecting the applications have stated that the Constitution lets the government celebrate “our tradition of religious freedom,” and that putting the motto on currency “comports with early understandings of the Establishment Clause” without compelling religious observance. Another view is that the phrase is a spiritual or philosophical statement rather than a discriminatory religious commitments... 210 Discuss the creation v. evolution theory in US educational and court systems. Cf creation v migration and settlement myth and history discussed under nationalism in Chapter 1 of CODRALKA 2. 211 Charles Lwanga (2016) “Kenyan atheists’ group issue ultimatum over their registration,” Daily Nation, Nairobi, 30/5/2016 at http://www.nation.co.ke/counties/mombasa/Kenyan-atheists-group-issue-ultimatum-over-their- registration/-/1954178/2770316/-/9yeqwaz/-/index.html (accessed 18/6/2016). 44 the Constitution that protected them. On March 22, 2019, the Court of Appeal upheld the LGBTI’s right to form and register an organization.
Dola Indidis, a Kenyan lawyer also initiated a case against the Republic of Italy and the State of Israel over the execution of the Messiah.212 The case was filed in the Kenyan High Court in Nairobi and was later thrown out. He later filed the same petition at the International Court of Justice.
With regards to the freedom of conscience, Kenyan courts have pronounced and affirmed the requirement that state or public officers must acknowledge and respect individual entitlement to conscience. In Mohamed Fugicha v. Methodist Church in Kenya (suing through its registered trustees) & 3 Others,213 the Court of Appeal permitted Muslim students to put on hijab (head coevrs) as part of school uniforms.
The court cited with approval, the South African case of National Coalition for Gay and Lesbian Equality v. Minister for Justice,214where it was stated that:
“The present case shows well that equality should not be confused with uniformity, in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across differences. It does not presuppose the elimination or suppression of differences. Respect for human rights requires the affirmation of self, not the denial of self.”
The Court elaborated:
“Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, stigma and punishment – At best, it celebrates the 215 validity that difference brings to any society.”
Consider the justiciability of the following clauses on inclusiveness (article 10), equality (article 27), participation of the people (article 10) and accountability (article 10).
1.19.4 Right to health: Patient’s rights in Kenya and Africa Relatedly, Justice Hatari Waweru decision that hospitals and doctors should bear the consequences if they fail their patients through negligence. The Court ordered Aga Khan Hospital
212 Damien Gayle (2013) “Kenyan lawyer Dola Indidis goes to International Court of Justice in Netherlands seeking to overturn the conviction and death penalty handed down to Jesus,” Daily Mail, United Kingdom, 5/8/2018, at https://www.dailymail.co.uk/news/article-2384466/Kenyan-lawyer-Dola-Indidis-goes-International-Court-Justice- bid- overturn-conviction-handed-Jesus.html (accessed 10/12/2018). 213 Mohamed Fugicha v. Methodist Church in Kenya (suing through its registered trustees) & 3 Others, CA No. 22 of 2015. 214 National Coalition for Gay and Lesbian Equality v. Minister for Justice (1998) ZAAC 15. 215 National Coalition for Gay and Lesbian Equality v. Minister for Justice (1998) ZAAC 15. 45 to pay the plaintiff two awards in the nature of general damages.216
1.19.5 Right to security and criminal justice in Kenya and Africa217 What about the ruling on the Security Laws (Amendment) Act, 2014 ? Constitutional petition on bond to keep the peace which was declared unconstitutional. This petition raises questions about the constitutionality of the provisions of section 43 — 61A of the Criminal Procedure Code, Cap 75 of the Laws of Kenya. The petitioners in this case asserted that the provisions above offend various Articles of the Constitution, Articles 27, 28, 29, 49 and 50 with regard to the rights of an 218 accused person, and are therefore null and void.
Liberty, freedom of movement (cf to criminal justice; to political justice.
Security administration: IG, NPSC)
Discuss the Lamu curfew imposed in July 2014 and subsequently extended to October by the then Inspector General of Police David Kimaiyo? what was the political economy and legal sociology of the series of attacks in Mpeketoni, Panda Nguo, Hindi, Witu and twin terror attacks in Mandera?219 Lamu county leaders faulted the National Government for failure to consult them in such a great matter of public interest to the people of Lamu County.220 Lamu East MP Ali Athman Sharif said the curfew would affect the fishing industry, tourism and many businesses. He argued that it should have been restricted to areas vulnerable to attacks and not the entire Lamu 221 County.
The Inspector General was allegedly performing his functions pursuant to Article 246(3)(c) of the Constitution of Kenya 2010, sections 8 of the Public Order Act, and section 14 of the National Police Service Act, Cap 84. Section 8 (1) of the Public Order Act provides that,
“The Commissioner of Police or a Provincial Commissioner222 may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that,
216 AAA v. Registered Trustees (Aga Khan University Hospital, Nairobi) [2015] eKLR. 217 See Chapters….CODRALKA 1; Chapter 13 CODRALKA 2, “Administering and Regulating Security and Criminal Justice in Kenya and Africa,” Ben Sihanya (forthcoming 2020). 218 Anthony Njenga Mbuti & 5 others v. Attorney General & 3 others [2015] eKLR. 219 Paul Wafula (2014) “Kenya has experienced 100 terror related attacks in three years ”Standard Digital, Nairobi, 18/8/2018, at https://www.standardmedia.co.ke/article/2000131848/kenya-has-experienced-100-terror-related- attacks- in-three-years (accessed 10/12/2018). 220 Kalume Kazungu (2014) “Lamu leaders fault Kimaiyo’s curfew extension,” Daily Nation, Nairobi, 21/8/2014, at https://mobile.nation.co.ke/counties/Lamu-leaders-fault-Kimaiyos-curfew-extension/-/1950480/2426448/- /format/xhtml/-/dgmf75/-/index.html (accessed 10/12/2018). 221 Kalume Kazungu (2014) “Lamu leaders fault David Kimaiyo's curfew extension,” The Daily Nation, Nairobi, 21/8/2014, at http://www.nation.co.ke/counties/Lamu-leaders-fault-Kimaiyos-curfew-extension/- /1107872/2426448/-/axbeo5/-/index.html (accessed 29/9/14); Fred Mukinda (2014) “Inspector General of Police David Kimaiyo says Lamu curfew extended to October,” Daily Nation, Nairobi, 20/9/2014, at http://www.nation.co.ke/counties/Kimaiyo-extends-Lamu-curfew-Monday/-/1107872/2459488/-/t66bh6z/- /index.html (accessed 29/9/14). 222 This was amended to now mean Regional Commandant. Cf OCDP to SCPC? To align police service to the political and administrative units.... 46 within such area (being, in the case of a Provincial Commissioner, within his province) and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.”223
On the other hand section 14 of the Police Act provided that the force (now service) shall perform its functions under the overall direction, supervision and control of the Commissioner of Police (now IG), and shall be impartial and objective in all matters and in particular in all political matters and shall not accord different treatment to different persons on the basis of their political opinions.
What is the implication of section 86 of the Security Laws (Amendment) Act, 2014 to the IG’s impartiality and objectivity especially on political matters? The section amended section 12 of the National Police Service Act by substituting it with the following sub-section-
“The President shall, within fourteen days after a vacancy occurs in the office of the Inspector- General, nominate a person for appointment as an Inspector-General and submit the name of the 224 nominee to the National Assembly.”
Mr Gibson Kamau Kuria, a Nairobi Advocate argued that National Assembly Majority Leader Aden Duale call for Lamu residents to disregard the curfew was callous and irresponsible. He elaborated that that was a call for the destruction of the State in the name of exercising the freedoms of worship and of speech and that such freedoms can only be exercised in a State 225 governed by the rule of law.
1.20 Powers of National Government in Kenya and Africa Consider the following powers and functions and responsibilities, duties and obligations of the National and County Governments in Kenya, Ministries, Departments and Agencies (MDAs) as well as the hands of the organs of Government.among others, in the context of the typology of people sovereignty constitutions, states, and Government and markets....
1.21 Summary of Findings, Conclusion and Recommendations on Sovereignty, Constitutions, States, and Governments in Kenya and Africa The central argument is that Kenya and Africa have suffered under rulers and governments that do not observe and actually reverse and negate constitutional democracy. Kenyans and Africans need to develop an Afro-Kenyanist approach and methodology on constitutional, regulatory and
223 Section 8(1) of the Public Order Act, Cap 56. 224 Clause 97 of the Security Laws (Amendment) Bill, 2014. 225 Gibson Kamau Kuria (2014) “MP and his ilk are wrong to reject Lamu curfew,” The Daily Nation, Nairobi, July 21, 2014, at http://mobile.nation.co.ke/blogs/MP-and-his-ilk-wrong-to-reject-Lamu-curfew--/-/1949942/2392158/- /format/xhtml/-/amt9g1z/-/index.html (accessed 29/9/14).
47 administrative law. The Building Bridges Initiative (BBI) provides an opportunity for reform. The people, scholars, experts, politicians and interested parties, other stakeholders should drive the agenda of reform and implementation of constitutional democracy in Kenya and Africa.
...the discourse continues in class, articles, books, online, in the blogosphere, social media, and appropriate fora… © Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 8/2/2019; 28/2/2019; 18/6/2019; 3/10/19; 3/12/19; 29/1/2020 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com
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