We like to say that our constitution is one of the best in the world. But just how is it better? Sometimes simply reading about things happening in other countries can bring home the differences.
APPOINTING JUDGES
I touched on this in Katiba Corner a few weeks ago, and suggested that our approach was better than that in the US when it came to appointing judges.
This was particularly in appointing Supreme Court judges, which has become intensely political there. Now that President Joe Biden has submitted his choice for new a judge in that court, you may have read that he must get the nomination through the Senate approval process by November this year – for fear that, after the mid-term Senate elections, there will be a Republican Majority in the Senate, which would oppose the appointment of Biden’s nominee.
Our Judicial Service Commission arrangement is not perfect, but I believe it is much better than that.
RIGHTS OF CITIZENS OVER CITIZENSHIP
Recent development in the UK have prompted this — indeed this article. One used to believe that being a citizen was something that could hardly ever be taken away. But over the years, the number of situations in which one may be deprived of British citizenship, and the extent to which the powers that exist are used, have both greatly expanded.
The grounds may be vague (“in the public interest” for example). People might lose their citizenship even if they had no other – so they would become stateless. Recent moves to change the law would mean that people would not need to be told there was any plan to take away their citizenship.
People can be severely penalised even if they cannot be shown to have committed any crime.
The vice-chair of the Institute of Race Relations said: This “builds on previous measures to strip British-born dual nationals (who are mostly from ethnic minorities) of citizenship and to do it while they are abroad, measures used mainly against British Muslims. It unapologetically flouts international human rights obligations and basic norms of fairness.”
Even for British citizens, having a passport is not a right. Granting it is a matter of ministerial decisions (exercising the “Royal Prerogative” though this does not involve the Queen at all). At any time a passport may be withdrawn.
Under the Kenyan Constitution, someone who is a citizen by birth cannot lose their citizenship. If they become a citizen by registration (which might be a right or something for which you have to apply and satisfy certain conditions), they might lose that citizenship. But it is for more precise reasons than under UK law.
It might be because a person lied or concealed some crucial fact when applying. It could be because they in some way assisted another country that Kenya was at war with. It might be for committing treason or some offence for which a sentences of at least seven years is possible. Or for some less serious offence when the person has been a citizen for under five years.
And a passport and an ID card is a right of Kenyan citizens. And like other rights, it can only be taken away by a law, and if it is necessary in the public interest, and if there is no other way of protecting that public interest than by taking away this right.
HAVING CLEAR AND COMPREHENSIVE RIGHTS
Kenya’s previous constitutions did have reasonable bills of rights – but not always very clear, and they did not include rights to things that are very important to people like food, water, health and education.
In 1948 the Universal Declaration of Human Rights was adopted by the UN. It was very straightforward and clear and included not just things like freedom of speech, assembly, and persona security, but those like health and food.
But in the 1960s, an ideological dispute between the Soviet Union and other left-leaning countries, and others, led to a sort of artificial, illogical distinction between the two supposed types of rights. So two international treaties were made – one on civil and political rights and one on socio-economic rights. Some countries adopted one and some the other. Some adopted both – including Kenya.
The argument by the Soviet Union etc was that they were committed to ensuring food, water, housing etc to their people and they did not accept limits on their efforts in that direction that they thought would come from protecting freedom of speech, demonstration etc.
Even earlier, some countries had included things like education and health but not as rights but as directive principles – things to guide government but not to bind them. Examples are Ireland and India. It took those countries years of creative lawyering and judging to make those principles into something more like rights.
When South Africa came to make its constitution, it decided to be direct about this and made them rights. And Kenya followed suit (Article 43 of our Constitution).
We have yet to make fullest use of this, but a number of cases have been decided on the basis of these rights – especially on housing.
EXPRESS RIGHTS FOR CERTAIN GROUPS
Many constitutions say “Everyone is equal before the law”. But our Constitution spells out in greater detail and clarity what this means.
It especially mentions that is wrong to discriminate on the basis of age, sex, disability – to take just a few. And it spells out some of the things that need to be done to ensure persons with disability, children and the elderly are treated really equally.
And it also includes some clear protection for marginalised communities and groups
This is something also taken from South Africa – and not often found in constitutions. This is the general principle that the public (the sovereign people) do not participate in government only by electing people, but in decisions that affect them. Specific provisions include participating in law making, in environmental decision making and in changing the constitution (including by popular initiative, hijacked by government in the BBI example).
This by no means works perfectly. Parliament often gives us very little time. We get little feedback about how public views are used. But it is making a difference to how Kenya is governed and how people look at government.
Some of these issues are a matter of how old constitutions are. Modern constitutions do deal with issues often not covered in older ones.
VALUES AND PRINCIPLES
This is something that is very unusual. The Kenyan Constitution is full of national values and principles, not just in Article 10 but throughout the text. They serve to remind politicians, officers, and the public, of what the constitution is really about. Not just about who gets power, but about responsibilities of those in power. And the courts have been able to use them in evaluating the conduct of those in power.
GUARANTEEING PUBLIC INTEREST LITIGATION
This is something that very few constitutions do. Again we largely copied our provisions from the South African constitution. They took their ideas from India – where the Supreme Court created PIL on the basis of the Constitution, but without any clear constitutional directive.
PIL is crucial - with an independent judiciary. If the possibility of going to court is an important protector of constitutional rights, it is equally important that going to court is not restricted to the wealthy, and to the particular individuals who have been harmed by violations of rights and constitutional duties.
Many major Kenyan constitutional cases since 2010 have been brought by groups and people who cannot say, “I have personally suffered”. They are saying to the court “We are acting in the interest of others who have suffered or will suffer, or in the public interest”. And Article 22 allows this.
Tanzania, for example, has no such constitutional guarantee. In 2020 it passed a law saying that court cases could only be brought by those who can show that they are personally affected.
Kenyans are right to be proud of their constitution!
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