Prof. Yash Ghai
Prof. Yash Ghai has advised in the negotiations and making of constitutions in about 15 countries. He chaired the Kenyan Constitution Commission and its constituent assembly which led to a new constitution in 2010. In 2013 Prof. Ghai was selected by the Fijian Military Government to be the Chairperson of Fiji’s Constitutional Committee. He was the Sir Y K Pao Professor of Public Law at the University of Hong Kong and has taught law at the University of Warwick. He has held visiting professorships at the Harvard Law School, Yale Law School, Uppsala University and the University of Wisconsin. In a recent visit to Sri Lanka, at the invitation of Democracy Reporting International, he shared with the Dailymirror the Kenyan experience of constitution making.
The people were very tired of an autocratic Government and some communities were completely marginalized because of the tribes
The Kenyan Constitution pays the most respect to the people
We wanted to remove ethnicity from politics
We didn’t want parties to start squabbling on ethnic lines
QCould you trace how Kenya was able to introduce a new constitution in 2010?
It took a longtime. Discussions about a new constitution commenced about 12 years before we finally had the constitution. There are a number of reasons as to why it took that long. We were experiencing a very momentous period from a situation of a one party state to a very democratic constitution. So it took time to persuade the regime.
Fortunately, the people were very keen on a very democratic system which is fair to all the communities, and that helped us a lot. People appreciated what we were doing. The politicians also realized that the people were in support of a more democratic, participatory process. So in the end we put the draft to a public referendum and it was approved by 70% of the voters. It took a longtime because politicians kept changing their mind.
I think people were longing for a change for a long time because we’ve had two very tyrannical presidents, who completely monopolized state power.
Q Since it took 12 years for the Constitution to be introduced, was the same draft used? What exactly was the process?
One advantage we had-may be over the system here- is that there was a commission appointed to propose a Constitution. This was a mixture of academics and civil society people. There were no politicians involved. I chaired that commission. We had good resources. We had enough money from Parliament and I didn’t need to raise money from outside. So in comparison to the work the commission achieved within 4 or 5 years, the period before wasn’t so formulized. But the civil society had become very active and they had been meeting and putting pressure on the Government. They had even done a rough draft of the Constitution. Ours was much longer and more sophisticated. But we did use the draft they had made. By that time there was strong public support. I think that was basically what kept the process going.
Q Could you share the Kenyan experience of public consultation before the Constitution was drafted?
I believe very much in consultation. I think the Kenyan Constitution is probably one that pays the most respect to the people. We are of course a much bigger country than yours. At that time we had 70 districts. We went around to each of these districts. We had meetings and explained to the people what our mission was. Then we told that we would return in six months when they would talk to us. We also posed some questions that they should also think about. We then established a small office in each of those districts, with one or two staffers, a small library and a computer where they could keep in touch with our work as we toured the country. They were also funded so that they could have their own meetings. This was done because when we went back six months later, they would be able to provide us with a collective view, or each group or individual could tell us what they wished to see in the Constitution.
When we returned to our office in Nairobi I had about 70 computer end lists. All these data was fed into a computer along 10 or 12 themes. At the conclusion we could see which people wanted a parliamentary system, who wanted an executive presidency and who wanted religion to take part in politics etc. We analyzed and summarized the feedback we received. We received space (full pages) in newspapers where we said ‘this is what the people told us’. We took them (newspapers) to the people themselves and inquired if it was a true representation of what they had said. Not a single group wrote back and said we never said that. We wanted to respond to the people’s concerns because often they can’t articulate. The press doesn’t go there. There is no mechanism for accountability. So this was the first time they really had the opportunity to get engaged. For us it was very important to see what life is and what the day today issues important to them are.
We believed in transparency. This was important in educating us and other Kenyans as to what people were thinking of in different places. It was also important because we wanted their support. They were very impressed. Nobody had shown that respect to them before. Even when the President was attacking me openly I just laughed. I knew that all these people were behind us. Their support didn’t wither. The whole thing was very democratic.
Here (In Sri Lanka) there has been some consultation. I’ve seen this big report that they produced. I was quite impressed by the way they had reached out to the people. I put a very high priority to people’s participation. Reading the report I was impressed by the views the people had presented which weren’t bigoted, which weren’t ethnically oriented. Many of them, I thought, were very democratic. It seems to me already that not too much attention is being given to this excellent report, because they not only summarize what people said, but also made their own submissions.
Q In Sri Lanka, the constitution making process has gone beyond the stage of the Public Representations Committee (PRC) report and the interim report has been released. When it comes to debating the interim report, do you think it’s still important to consult the public and obtain their views?
Oh, yes, I think it’s essential during all the stages. They have to be consulted and there has to be publicity for all the discussions that take place in parliament or committees. In our case it wasn’t a parliament. It was produced by 15 of us after all these consultations I mentioned and all the research. Not a single politician was involved and they didn’t like some parts, and I said ‘sorry, people in this country want it’. So I would say continue with the dialogue with the people.
Q When Kenya held a referendum in 2010 what was the driving force which made Kenya win the referendum?
I think the people were very tired of an autocratic Government and some communities were completely marginalized because of what we called the tribes. I won’t say that they were helping people of their own tribes. But the impression given was that they only support the people of their own tribe. But in fact when we were travelling in the country, even in the area of the President, we didn’t see much sign of development. People complained to us that even though the President came from their tribe he didn’t really care for them. So I think that people had grown tired of the dictatorial regime. They had got tired of corruption, and it had gone on for quite a long period. They wanted a fairer system and this was throughout the country. So that morally and psychologically enabled those of us involved in making the constitution to feel that we have this very strong support.
Q What are some of the progressive features of the Kenyan Constitution that Sri Lanka could also adopt?
The Kenyan Constitution has a number of innovations. We were very much entranced by the South African Constitution. Their Constitution was made about 20 years before we finalized ours. So we were studying it very carefully. We had our own views. We had been for 20 or more years under a dictatorship. So we wanted to avoid that from repeating.
There was a strong emphasis on human rights and people’s power. People not only vote at elections every five years, but constantly stay engaged with the law and policy making process. The Government actually has to consult the people before they make policy. They have to announce in the newspapers what they’re proposing and they must give some weeks for the public to comment. So it’s very much a constant democratic system.
We are also very concerned about conflicts between different ethnic groups in Sri Lanka. That had been a very big problem for us. We have about 44 tribes. But five tribes dominate the whole country and they’re constantly fighting each other over Presidency and power. So we wanted to remove ethnicity from politics. Now the real test is citizenship. If you’re a citizen, you’ll have the same rights that anybody else has. At the same time we appreciate the culture of different groups-the music, the literature, the religion etc. We thought that all that was valuable should be preserved. But we tried to make a distinction between private lives, social lives and the State. We didn’t want all these to intrude the State. We just wanted every citizen to be treated as an equal, which I think was a big change.
Generally the executive presidency isn’t very healthy, especially when you have a multiplicity of language groups or religious groups because inevitably you’ll have the President from one community. And that person has all the great powers. Inevitably the president enjoying all these powers unnerves the people
We also tried-though it’s a difficult thing to do- to make every political party register as a party for the purpose of elections. They had to establish themselves with the registrar of societies and prove that it was genuinely a national political party. What we meant this way was that they had offices all over the country, and that their membership reflected the diversity of the country. We didn’t want parties to start squabbling on ethnic lines.
We also created a number of independent institutions where we felt that the Government would become too partisan such as in the appointment of judges and the ombudsman. So we have around nine of those politically independent institutions.
Q You have been vocal against the ‘imperial presidency’ of Kenya. There is an executive presidency in place in Sri Lanka. Do you think that the executive presidency should be abolished, or that the powers of the executive president should be reduced?
Generally the executive presidency isn’t very healthy, especially when you have a multiplicity of language groups or religious groups because inevitably you’ll have the President from one community. And that person has all the great powers. Inevitably the president enjoying all these powers unnerves the people. He receives a lot of authority. So this is not really very democratic. Many communities feel left out, whereas in a parliamentary system there is much more sharing. There is a Prime Minister who is the leader of the Government, but there is accountability on a daily basis to Parliament. Within the cabinet itself there are discussions. In England, very recently, the Prime Minister was thrown out. In Multi-ethnic societies I think a parliamentary system is much better. There’s a big fashion in the African countries to have an executive presidency and I think that has been a big disaster for Africa.
Q How can constitutional reform resolve minority concerns?
A constitution can resolve it by ensuring that the appointments of public servants and ministries are based on merit and not on ethnicity. If the larger tribe tries to bribe then they get disqualified. We also have provisions that if a particular community has been marginalized over a period of time- as many have in our country- then the State must take remedial action, so they also elevate themselves to the level of other communities. So I think that the minority groups now feel that they are part of the Kenyan family.
The other thing we did was to set up a system of devolution. We have around 47 constituencies which we call counties. Significant powers over matters of local concern such as primary schools, agriculture have been devolved where the counties are in control. They raise the money themselves through taxes, but the substantial amount of money they have is what is transferred from the national treasury on the advice of an independent commission. They now have their own area and nobody can interfere. As a result these people feel that they are part of Kenya.
In your case I know that the Buddhists claim special privileges. But it’s hard to see on what basis they claim this special treatment, emphasis or mention. I think it will be wonderful if Buddhists, Muslims and Christians can air their voices together and state what the national problems are
We have a senate, a second chamber which consists of representatives from the counties. So in these different ways we have tried to change the system. But I can’t say that we have succeeded completely. The constitution came in 2010 and the time since then hasn’t been sufficient to try to make fundamental changes.
Q Has Kenya also been struggling with the ‘Unitary’ and ‘Federal’ labels like in Sri Lanka?
No, most countries in Africa are unitary. But there has been an increasing trend during the past twenty to twenty five years towards some kind of a provincial Government. The word federal is used only in Nigeria and Ethiopia. In Kenya we don’t use the word ‘federal’. We say ‘devolution’. In South Africa there are three tiers whereas we have two. There is a trend now in Africa towards sharing power. They feel that it’s not really possible to govern from the Capital especially as our communications aren’t that great and roads aren’t very tarred. So it’s slow, but I think it’s a good move and I certainly support that. I think we are better off in Kenya for having devolution.
QWhy is it that federalism is feared?
There seems to be a particular phobia in your country (Sri Lanka). Most people (in other countries) aren’t afraid. After all India despite making itself a federation remains very united. I’m also a bit puzzled. I was speaking the other day here and I said that I look upon federalism not as to something do with the minority. It is to do more with democracy. As I often say in lighter vein locally, any Kenyan unhappy with their local Government can just walk half a mile and knock on the door of the governor and say ‘come come tell me this’. And some do this. This is just to say that you have so much access to the Government. The Government can’t make policy either at the national level or at the provincial level without informing the people. This has really enhanced equality and democracy.
Q How do you balance freedom of religion with other fundamental rights such as the right to equality in a constitution?
The Bill of Rights of the Kenyan Constitution provides for religions freedom to be exercised. Rights of religious communities are protected but another Article states that the State and religion are separate. Most people are Christians. The church has tended to throw its weight around and we have to remind them that they better stick to the church, and not get into politics. We have many religions. But Christians and Muslims are the main groups. There are also Hindus and other smaller groups. I must say that the religious groups have done a wonderful job. They meet up regularly. They put pressure on the Government collectively. They respect all the religions within the parties. So religious groups have been a positive factor when we were making the Constitution. Religious groups were supporting us. But we know by studying other countries that religion can be divisive and can lead to conflict.
In your case I know that the Buddhists claim special privileges. But it’s hard to see on what basis they claim this special treatment, emphasis or mention. I think it will be wonderful if Buddhists, Muslims and Christians can air their voices together and state what the national problems are, and express the views of the religious groups in a positive manner. In some countries, as my own (Kenya), it has been possible. In some countries it hasn’t been. I think a country where a religion begins to play an active role in politics is not very healthy. That’s not democratic. Increasingly, if you look around the world, religions are welcome in States, but they are not to take part in politics, and all religions are equal.
Pix by Nisal Baduge