Need to Overcome Semantic Manipulation of New Constitution

Although the National Accord was a political deal between combatants designed largely to halt the bloodletting witnessed in the aftermath of a messy electoral process in 2007, the referendum on Kenya’s constitution in August 2010 effectively transformed the Accord into a compact between Kenyans and their rulers. By the overwhelming vote in favour of the new constitution, Kenyans asserted the importance of the Accord in the transition from an anomalous presidential system in 2010 to a pure presidential system based on clear checks and balances in some measure by 2012. By this act, Kenyans imported the “consultation between the president and the prime minister” in this transitional period into the solemnity of its constitutional text. The consultation between the two principals is then one of the condition precedents for the appointment of key constitutional office holders.

The current tussle regarding the legality of the president’s unilateral decision to nominate the chief justice, attorney general and two others without sufficiently consulting the prime minister calls for an understanding of the normative requirements that would ensure compliance with constitutional consultation embodied in Kenya’s new constitution.

The plain meaning of the verb “consult” means “to confer, discuss or decide an issue.” If unambiguous, words in law should be interpreted in their plain and natural meaning unless this meaning leads to absurd outcomes. According to Justice Blackstone, the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. Proponents of the unilateral presidential decision of appointment have argued that consultation is not consent or approval implying that the president was under no obligation to secure an agreement from the prime minister in relation to the four appointments. These proponents seek an interpretation of consultation as a process and not an outcome. Such an interpretation means that the prime minister has no choice but to agree with the president’s choice and all that is required to satisfy constitutional consultation is for the prime minister to be informed of the president’s proposals before such proposals are submitted to parliament or made public. This narrow interpretation of consultation negates the spirit of the national accord (which now has constitutional character) and whose purpose is to facilitate “real power sharing” between the principals until 2012.

Moreover, read in context, the present constitution emphasizes consultation between national and county governments as well as between various constitutional organs. For instance, Section 205 envisions consultation between the Commission on Revenue Allocation and both the national assembly and Senate in any financial matter concerning the county governments. Section 220(1) (c) mandates parliament to formulate legislation that will among others provide the framework for consultation between national and county governments in the budgetary process. Similarly, the transitional and consequential arrangements in schedule eight require that the Attorney-General consults with the Commission for the Implementation of the Constitution (CIOC) in the preparation of the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified. Were consultation an empty process, it would mean that parliament would most likely enact a law that renders meaningful negotiation between county and national government a mere formality lacking in substance. Similarly, the constitutional requirement that the AG and the CIOC consult before originating legislation to give effect to a specific aspect of the constitution would be thrown into a state of uncertainty.

Consultation was the answer to Kenya’s fractured and tribalized politics post 2007.

This is because, consultation seeks to build consensus in a manner that unites various constituencies instead of dividing them. It encourages diversity of opinion and acts to control the struggle for power that is otherwise so common in traditional decision-making systems. When followed, this principle encourages those ideas that spring forth from a sincere desire to serve, as opposed to ideas that emanate from a desire for personal aggrandizement or constituency-building. Consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity. In the realm of environmental and human rights law, consultation means that those consulted must be given a reasonable opportunity to state their views. While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.

In the end, when two physicians ‘consult’ over the seriousness of a health condition, it is important that they reach some consensus on the remedy they will prescribe. Given that Kenya’s judiciary has for long been ailing from a complex range of maladies, it is important that the current political physicians understand that they have few choices and short time in re-legitimating this institution.

Kenya’s Electoral System: Failed Thinking in the New Constitution

Sometimes in 2010, Najib Balala, one of the leading luminaries of the Orange Democratic Movement (ODM) apologized to President Kibaki for Moslems' rejection of Kibaki’s candidature in 2007. One of the questions raised by Balala’s ‘apology’ to Kibaki  is the extent to which a vote in the first-past-the post electoral system used in Kenya in 2007 is a true expression of a voter’s real preference. Put differently, does a system that assigns equal weight to every vote without measuring the intensity of a voter’s preference generate truly democratic outcomes?

This matter is relevant to the Kenyan scenario. In 2007, three strong candidates-Kibaki, Kalonzo and Raila- vied for the presidency, and between them 99% of the votes cast were divided. At the end of this heated election, thanks partly to an inefficient and compromised electoral body but also due to the fact that only a few thousand votes separated Raila and Kibaki, it was near impossible to determine an outright winner. Could Kenya have avoided the violence that ensued by the adoption of a different electoral system? The answer to this question will, in my view, explain Balala’s apology.

It will be recalled that in the run-up to the much maligned elections, proposals to reform the electoral benchmarks were tabled by the Paul Muite-led Parliamentary Committee on Justice and Constitutional Affairs. Essentially; these proposals would have required that a president elect secures a supermajority. Apart from garnering a simple majority victory and at least 25% of the votes in five provinces as currently mandated, the proposals required a president to be additionally voted for by at least 50% plus 1 of the voters.  Absent this threshold, a run-off between the two best performers in the general elections would ensue. This is one approach which has worked in emerging democracies including Ghana and Sierra Leone. More established democracies including France also pursue this system. This system is however arguably expensive considering that a fresh election would have to be organized. Further, it could exacerbate existing tensions to manic levels especially in the transitional period between the initial election and the run off. In an atmosphere polluted by the politics of ethnic balkanization such as our own, there is no guarantee that a run-off outcome would not suffer similar credibility crisis as did the 2007 elections. Moreover, institutional failures both at the electoral body and within the broader security and justice sectors could undermine the run-off.

A more efficient system can however be created; one in which the run-off scenario rather than actual is merely simulated. This can happen if Kenya adopts an alternative vote system which gives a voter the opportunity to rank, not only their number one candidate, but also their number two, three and so fourth candidates. In a context in which the votes are too close to call or where none of the candidates receives a supermajority,  the electoral body would simply simulate a run off by carrying out an analysis of not just the number of votes received but also their intensity. In the 2007 elections for instance, the electoral body will have considered how many of Kibaki’s voters had Raila as their number two preferred candidate; how many Raila candidates had Kibaki as their number two preference and how Kalonzo’s voters viewed the two. Indeed, the current coalition arrangement is intuitively a fair representation of such an analysis, albeit outside a coherent constitutional framework. By choosing to support Kibaki over Raila in the tussle for the presidency, Kalonzo’s posture suggested that his supporters ranked Kibaki higher than Raila, and would have voted for him in the event of a run off. Hence one way of rationalizing Balala’s assertion is to argue that even though Muslims largely voted for Raila in 2007, Kibaki was their second close preference, and could have received their backing in the event of a run-off. Admittedly, the alternative vote electoral system is also not fool proof, but at least it does capture the question of intensity of voter preferences, which bears on the quality of the democratic choice. Unfortunately the new constitution adopted in August 2010, adopted the 50% plus 1 rule which although better than what pre-existed it, is costly in monetary terms as well as in relation to instability during the period between the first and runoff elections.

Balala may be a political turncoat or a politician with an axe to grind, but his recent apology to the president on behalf of Moslems suggests that Kenya should think seriously about its electoral system. Unfortunately, the new constitution did not go beyond the obvious dichotomies of choices between a presidential and parliamentary system. Instead, one would have hoped that the search for options for deepening democracy should additionally focus on electoral arrangements that will most answer to a country that is so diverse and politically polarised. It is now for the judiciary to interpret the new constitutional provisions using a more rational lense.

In the end, the pure majority rule that now obtains cannot be reconciled with the idea of maximizing social welfare because it ignores the preferences of minorities. It is no accident that long lived democratic systems deviate from this unalloyed version of majority rule by having several layers of representation and by requiring, in numerous settings, supermajority or near consensus.

THE AFRICAN GROUP: FRIEND OR FOE OF AFRICA’S ASPIRATIONS?

Kenya has a strong defender at the UN-the African Group. So does Sudan. It comes as no surprise that the African Group condemned the harsh indictment of Kenya’s prosecutorial and policing authorities by the special rapporteur on arbitrary executions, Professor Philip Alston. Similarly, this same group was in the forefront of Kenya’s defence for its invitation of General Bashir in flagrant disregard for its obligations to the International Criminal Court. A keen observer of the attitude of this regional grouping of fifty six countries will have noticed that its’ actions have consistently been Statist in orientation and largely anti-human rightist. To its credit however, the African Group appears extremely interested in ensuring that issues of global economic inequality are mediated and that Africa benefits from globalization. It is important to consider the genesis, contested role and achievements of the African Group, lest its recent defence of Kenya is over-emphasized or ignored.

Arising from Africa’s historical marginalization from the more domineering UN Security Council (SC) charged with ensuring global peace and security, the choice of forum for its diplomatic activities has largely been concentrated at the UN General Assembly (GA), where it commands significant numerical majority. It is therefore within the GA that the African Group flexes its muscles and dramatizes its role, often in coalition with the other developing countries’ groupings, notably Asia. The GA is the chief deliberative, policymaking and representative organ of the United Nations comprising all 192 members of the UN. Indeed, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter including the promulgation and codification of human rights standards, both declarative and treaty instruments. To the extent that the GA has adopted a number of significant human rights instruments that have a bearing on human rights in Africa- from the veritable International Bill of Human Rights to the recent Disability Convention- it can be admitted that that the African Group has contributed to the overall universalization of human rights norms and language. Nonetheless, it must be appreciated that such treaties although duly adopted would still require action at the state level, particularly where such states are monistic in orientation. The import of this is that African states often adopt and even ratify instruments but do not provide domestic imperatives to enliven these treaties. The limits of the actions of the African Group in terms of standard setting must therefore be considered from the less significant place of the GA within the larger institutional framework determinative of global policy.

With thirteen members out of forty seven at the new Human Rights Council, a subsidiary body of the GA responsible specifically for strengthening the promotion and protection of human rights around the globe, the African Group working with the Asian Group which has an equal number of representatives at the Council, has often stood in the way of more radical action against human rights violators particularly in developing countries. Hence, the Council, originally designed to place human rights at the centre of global policy in the context of UN reform, has failed to rise to meet this intended purpose. Even the Council’s flagship strategy, the Universal Periodic Review, a mechanism intended to systematically assess the human rights situations in all 192 UN Member States, has been significantly watered down due to the recalcitrance of the African Group and its coalition of the complicit, backed by China and sometimes, Russia.

But the worst form of malfiescence on the part of the African Group has been its brazen defence of autocratic regimes in the continent in deference to notions of territorial integrity and national sovereignty. For instance, the African Group has strenuously counselled against stronger sanctions towards Zimbabwe in spite of the latter’s flagrant abuse of human rights, including the worst forms of arbitrary arrests and intimidation targeting civil rights activists. In the same vein, the Group has stood up for the Khartoum regime to challenge the Security Council’s reference of the genocide in Darfur to the International Criminal Court. That over 300,000 people have been killed and millions displaced appears to have had no effect on the African Group’s determination to defend the continent’s hard won sovereignty. In 2006, the African Group also led those opposed to the adoption of the UN Declaration on the Rights of Indigenous Peoples on the grounds, inter alia, that the Declaration’s provision on consultation of indigenous people in development programs was an affront to the sovereign rights of states; a fallacy of superlative magnitude. It is also to the Human Rights Council that the UN Special Procedures, including Prof Alston’s Rapporteurship on Extra Judicial Executions, report. Consequently, the condemnation of Alston’s recommendation with regard to Kenya, and the ongoing lobby for the non-renewal of Alston’s mandate is consistent with the African Group’s disdain for strong international censure of the continent’s semi-authoritarian regimes.

In contrasts to its dismal record as defenders and promoters of human rights, it must be stated that the African Group has strongly advocated for the international appreciation of the economic plight of Africa. Starting in the 1960s in the context of decolonization and the new economic order led mainly by Eastern European countries, notably Tito’s former Yugoslavia, the African Group sought to reformat its relationship with its former colonial masters in the west. Specifically, the adoption of the Declaration on the Right to Permanent Sovereignty over Natural Resources in 1962, which has subsequently become part of customary international law, signalled the intention of Africa to thwart iniquitous appropriation of natural resources in Africa by western states’ multinational capital enterprises under the guise of economic investments. Specifically, the Declaration asserted the right of peoples “to freely dispose of their natural wealth and … (that a people be) not deprived of its means of subsistence,” a provision reiterated in Article 28 of the African Charter on Human and Peoples’ Rights. The recent forays of the Chinese capital in the extraction of the continent’s natural resources from timber to fossil fuels, however, reveals a duplicity in the continent’s approach towards natural resource exploitation More recently, the African Group has engaged with international trade issues with a view to ensuring that Africa’s interests are articulated and protected. For instance, in the context of the WTO, the Group has questioned TRIPS' requirement for mandatory patenting of some life forms and some natural processes. It did propose clarity that plants, animals and microorganisms should not be patentable. It also sought clarification that a “sui generis” system of plant varieties protection should include systems that protect the intellectual rights of indigenous and farming communities. These proposals represent important milestones for the protection of vulnerable farming communities in Africa that would otherwise be further marginalized by a more circumscribed international intellectual property regime.

Whether the African Group at the UN is indeed a friend of Africa is hence a question that must be assessed from the context of the foregoing outline of its performance. It is clear that rather than a champion for human rights, the African group appears more and more to be a champion for Africa’s development. This approach, however, is counter-productive since, it is often the case that sustainable development is a coefficient of respect for human rights.  The African Group’s posture, moreover, has succeeded in reviving the dichotomization of human rights into civil political rights that resonate with western states, and economic, social and cultural rights, that purportedly go well with countries burdened by poverty and want, especially Africa. This dichotomy however, fails to appreciate the universality of human rights, acknowledged since the Vienna Human Rights Conference in 1993. As such, the approach creates excuses for African dictators to run amock rather than encourage the entrenchment of a culture of accountability in governance.

No Longer Tragic: Nobel Prize and the Legitimating of Common Property in Africa

Much time has already been spent in justifying or dismissing president Obama’s selection for last year’s Nobel peace prize. In contrast, little attention has been paid to the other Nobel awardees, particularly Elinor Ostrom, the 73 year old woman professor of development economics at Indiana University, who together with Prof. Oliver E. Williamson, shared the 2009 Nobel prize in economics. I argue here that the choice of Ostrom for this important award is perhaps more significant for Africa’s poor than the recognition bestowed upon president Obama; our collective pride for the latter’s international respect notwithstanding.

Since the 1960s, the predominant policy prescription for ensuring sustainable exploitation of land resources in Africa has been the individualization of land held under custom. This move was largely driven by neoclassical economists led by Garrett Hardin who called his famous 1968 essay on shared resources, “The Tragedy of the Commons.” Hardin persuasively argued that a shared village grazing pasture would tend to get overused and eventually destroyed because more people utilized the common grazing ground without paying for the cost of maintaining it; a phenomenon known in economics as free riding. This view has inspired a variety of land reforms with a general trend toward market-oriented access to, and privatization of land through private entitlement. The premise was simple: individualized tenure offers the best certainty in land rights, which provides incentives for sustainable use and facilitates access to credit for investment in agriculture and natural resources, hence contributing to increased productivity and improved natural-resource stewardship. Evidence now suggests that this individualization of common property has neither yielded the economic and environmental returns envisaged nor improved living standards for those affected. For instance, according to Rutten, a Dutch scholar who undertook extensive research work in Kajiado, one of the three Maasai districts in Kenya where individualization of title was pursued through the establishment of group ranches with funding from the World Bank and Dfid, grazing land had reduced by well over 40% over the period 1982 and 1990 leading to increased vulnerability and destitution of pastoralists, not to mention, accelerated wanton environmental degradation.

By awarding Ostrom, the Nobel Committee has peradventure indicated that a paradigm shift has occurred and that in fact Hardin's famous Tragedy of the Commons theory should no longer be treated with reverential deference. Consequently, the developmental superstructure based on Hardin’s theory must yield to more cooperative property regimes. Ostrom’s research suggests that far from a tragedy, the commons can be managed from the bottom-up for a shared prosperity-given the right institutions. In her study Governing the Commons: The Evolution of Institutions for Collective Action (1990) based on numerous case examinations of user-managed fish stocks, pastures, woods, lakes, and groundwater basins, Ostrom observes that resource users frequently develop sophisticated mechanisms for decision-making and rule enforcement to handle conflicts of interest, and she characterizes the rules that promote successful outcomes. On this premise, she proceeded to propose eight “design principles” of stable local common pool resource management, most of which principles are not too dissimilar to those already in place in pastoral commons in the Sahelian regions of Africa. These Sahelian common property systems, now codified as Pastoral Codes for instance, allow for the survey, mapping and recording of “all forms of existing and practiced land rights, such as they are perceived and presented by the holders of these rights themselves.” Ostrom’s proposals suggest that while markets can organize production and consumption pretty efficiently, it can only do so when supported and nurtured by networks and communities. In Ostrom’s thesis therefore, private associations often, unaided through the instrumentality of state legislation, have managed to avoid the tragedy of the commons and develop efficient uses of resources.

The recent adoption by the African Union (AU) of Framework Guidelines on Land Policy in Africa under the guidance of the late Professor Hastings Okoth Ogendo and the ongoing attempts by UN-OCHA and AU to formulate a continental policy on pastoralism suggest increasing macro policy recognition of the importance of common property regimes. Similarly, current emphasis on participatory forest management point to the importance of local community cooperation as the singular logic in sustainable environmental resource use. This is in contrast to the individual-responsibility-models of the last three to four decades post-independence. Coming hot in the heels of these developments, Ostrom’s Nobel prize should serve to catalyse efforts aimed at the protection and promotion of indigenous systems of resource utilization in Africa.

Because the resilience of indigenous systems of land management have time and again proven that commons do not have to end in tragedy, Ostrom’s Nobel is well deserved. More importantly though, her Nobel is deserved because, the utilization of her economic theory will unlock the potential of common property regimes which, if better deployed, could serve to ensure a more people- centred face of national development in Africa. We hold that such a shift will protect vulnerable communities and individuals from unchecked market and environmental shocks that presently imperil their existence and threaten global food security.