International intervention in constitution making unnecessary: Kenyan expert | Page 2 | Daily News

International intervention in constitution making unnecessary: Kenyan expert

Kenyan academic on constitutions and former Chairman of the Constitution of Kenya Review Commission, Yash Ghai said pressure exerted by UN bodies and the West on countries involved in constitution making to have them settle on some sort of agreement, quick results in the relevant constitution not being viable for long or being accepted by the people.

“This sort of intervention is unnecessary. Let the people get on with their tasks, let them fight, let them define their differences and let them deal with it. Foreign intervention often is not a very good thing,” he said delivering a lecture on ‘Mediating Political Compromises through the Constitution’ at the International Centre for Ethnic Studies on Monday (23) evening.

Ghai who has experience in advising over 20 countries on their constitutions pointed out that Constitutions have the habit of attracting other groups and people, and is often not completely national. The UN which gets in there quickly, he pointed out, even had a division within its office in New York devoted to sending experts to other countries to solve their problems.

Citing Iraq as an example, he stated that American intervention in the process simply complicated things and lengthy negotiations between the Sunni groups and the ruling majority fell apart due to the Bush Administration wanting the process expedited due to mid-term elections in the US.

The Kenyan Constitution which Ghai was greatly involved in, had taken 15 years from the time of it first being negotiated to the final day of adoption in August 2010. He explained that while it had various phases, the greatest challenge was in having political parties accepting the structure and nature of the state.

“Emphasis shifts from value and principles to structure of systems and electoral systems,” said Ghai as he pointed out that it was easy to get political parties to agree on civil society priorities such as health and education but harder for them to come to a common agreement on electoral systems and nature of the state. The devolution aspect of the Kenyan Constitution too had to be implemented incrementally over the years, due to its controversial nature.

The Kenyan Constitution, however, which had reached a deadlock during its formation due to political infighting, had been resolved with the intervention of the African Union and one major political party walking out of the process.

“To some extent, the differences between the parties may not be as deep as we imagine. Politicians keep on fighting endlessly and it is not about social policies, looking after the poor, or letting the market take its course, it is really about capturing the state. This is important, it is a way to amass a huge fortune and the state in developing countries is very central,” he explained.

The best way to ensure the longevity of a Constitution, he said, was to have people involved in the process as much as possible. He recommended that the Constituent Assembly have the participation of civil society equally represented and not have it simply as a body of Parliamentarians. The Kenyan Constituent Assembly made up of 624 members was one third Parliamentarians and two thirds the general public.

“Politicians are less willing to make compromises than other groups and when you get to more political things like structure of state and electoral system, they would come in and make settlements very difficult,” said Ghai.

Getting people more involved, he said, would also ensure loyalty to the constitution and it would open up public debate on the subject,

“It would also silence the bigoted minority as a large percentage generally wants an equal and fair constitution. Politicians worried about their vote are reluctant to upset things but if debate is open, they will see that extremist ideas do not have much support and important decisions can be made,” said Ghai.

The constitution expert, however, warned against holding referendums on constitutions as it tended to backfire on a government, “Referendum is not a good procedure for endorsement. Because people, annoyed by another issue may not vote for the critical things,” he explained. France for an example, which chose to have a referendum on an EU Treaty, found the French voting against a critical Treaty because they were annoyed with the government over a completely different matter, he said.


 

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