Conference on Constitutional Democracy in Africa: A Brief Report

By Dr. Chris Seiple on 03 September 2008

Executive Summary: The Institute for Global Engagement (IGE) partnered with the United Nations Development Programme (UNDP) and the Kenyan Ministry of Justice, National Cohesion, and Constitutional Affairs to co-sponsor a conference on constitutionalism in Africa. There were over 100 participants and six ministers of justice from the 13 nations in attendance: Kenya, Senegal, Uganda, Rwanda, South Africa, Ghana, Tanzania, Nigeria, and Ethiopia; and China, Germany, Singapore, and the United States. The conference included Kenyans from all political and tribal perspectives, many who had not spoken to each other since the January/February violence that had erupted between the supporters of President Kibaki and Prime Minister Odinga, the two presidential candidates in December’s disputed election. The conference was covered widely by national and international press.

With opening and closing addresses by President Kibaki and Prime Minister Odinga, respectively—both of whom called for a new constitution as soon as possible—the conference signaled political buy-in and accountability from Kenya’s top two leaders. By all accounts, the earnest participation of the president and the prime minister ensured that the conference created the necessary momentum to begin building the political unity needed among Kenyan leaders to finally draft an approve a constitution that serves all Kenyans.

Background: In November of 2007, IGE co-sponsored a Southeast Asian conference in Hanoi on religion and the rule of law with the Vietnamese government, bringing an international delegation of scholars and observers to participate. IGE uses relational diplomacy to come alongside what the government is already doing by helping to create a safe space where policymakers and scholars can wrestle with the tough issues facing their society and legal system. This conversation is deepened by the presence and contributions of scholars from outside the country. These scholars present expert opinions that contribute substantively to the issues at hand, while also providing a perspective that can be referenced by people inside the country in a manner that is politically safe. Put differently, when difficult issues are discussed only by the people experiencing them, it is all too human for those discussions to be reduced to political positions and/or shouting matches among the competing interests. An outside presence/perspective keeps insiders on their best behavior while encouraging an honest and thoughtful discussion that might not otherwise take place. The result is a process that anticipates the final product—that is, a culturally-owned, rule-of-law constitution that protects freedom of conscience and the minority because it has evolved from a civil forum that was mutually respectful of differing opinions.

Attending that Hanoi conference last November was Malcolm Morris. Morris is the founder of Living Water, a development NGO that he started in 1990 as the result of being in Kenya. Since that time, Morris has repeatedly returned to Kenya, developing relationships with all parties and perspectives, serving all Kenyans. When former U.N. Secretary General Kofi Annan began brokering an agreement between President Kibaki and Prime Minister Odinga amidst the post-election violence, Morris was invited to participate. Through his personal relationships with the President, the Prime Minister, and the Minster for Justice, Martha Karua, he suggested and gained their support for the idea that Kenya needed an experience similar to the IGE conference he had witnessed in Hanoi just a few months prior.

Context: As Prime Minister Odinga mentioned to the conference, many Kenyans are constitutional experts because of the multiple commissions they have experienced and participated in these past few years (Odinga called it the “most consultative process in the history of the world”). Without going into all the details, the central problem has been preserving the unified political will to address the most contentious constitutional issues, including: the role and place of executive authority (currently located in the office of the president without strong checks and balances); the devolution of power to regions dominated by one tribe in a manner that protects the minority (Kenya is a highly-centralized state); an equitable land distribution (disputes date back to colonial and tribal times); and religion (Kenya has special courts for Muslims, who make up 20% of the population). The last serious conversation about the constitution—a national referendum—failed in November 2005. When Kofi Annan brokered a deal between President Kibaki and Prime Minister Odinga in March 2008, however, he required that Kenya develop a new constitution.

Nevertheless, as IGE explored its participation in the conference, there were many who were skeptical of “another” constitutional conference on two counts: the conference would be like all the previous efforts, well-intended but useless; and, that given the constitution drafting that would begin this year by a team of experts, there was no need for a parallel track, public and comparative, that might inform the constitution writing.

Timing: Since the Annan-brokered deal between Kibaki and Odinga, the violence that killed 1500 Kenyans and forced as many as 300,000 to become internally displaced has subsided. Meanwhile, the legal mechanisms have been put in place to develop and write a new constitution. Upon their October return to session, Kenya’s parliament will consider two draft laws regarding how a draft constitution will be considered, amended, and approved. A team of experts are scheduled to begin drafting the constitution in November.

But there has been no public forum since the violence to comparatively analyze how a constitution—as a political agreement that must take legal form—serves the best interest of state and society. More importantly, there has been no public forum that brought former antagonists together to discuss the issues in a civil manner, and thus provide a point and a place from which healing could begin. Although there were many factors that placed this conference in the 3rd week of August, the timing of “The Regional Conference on Constitutional Democracy in Africa in the 21st Century: Challenges, Best Practices and Opportunities” could not have been better.

Conference Summary: The peoples of Africa were twice usurped in the 20th century: first by the colonialists, and then by African leaders who did not have “servant hearts” (as one scholar commented), both of whom used the constitution as a means for preserving their own power. Aware of this past, the African leaders of this conference seemed unified in their understanding that what Africa needed most was constitutions that enabled a culture of constitutionalism. In other words, the constitution must be much more than a legal piece of paper. The letter of the law is only sufficient if it reflects the spirit of the law—that is, the values that the law protects and promotes. Successful constitutions must simultaneously reflect the particular context and culture of individual countries while enshrining common values that transcend all societies and states.

In my own opening ceremony remarks, I framed this idea as a choice that all societies and states must actively make each day: will our respective constitutions serve as a “social contract” or as a “social covenant”? Borrowing from and building upon Jonathan Sacks’ book, The Home We Build Together, a social contract is defined by what people get; it is a transactional quid pro quo where mere tolerance of the other is the unifying factor. A social covenant, however, is defined by what people give, it is a transformational agreement built on trust, providing a place where citizens can become more fully human by having an identity that is rooted in respect for the other. Covenants results from building something together, Sacks tells us, and the first thing that a society and state must build together, I suggested, is a constitution that enables democracy as a means to preserving, protecting, and promoting the dignity of each human being, a dignity that begins with mutual respect for freedom of conscience.

This point was made acutely clear when Senator Krueger, an IGE delegation member, shared with the conference his experience of surviving genocide in Burundi, where he served as U.S. ambassador from 1994-1996. By describing in graphic detail the mass graves and murders that resulted when one people group took away the dignity of another by de-humanizing them, Krueger reminded the audience of the dire stakes should society and state not be able to agree upon a constitution that was of, by, and for the people of Kenya. Krueger’s address was the highlight of the conference. Other highlights from/for the IGE delegation included:

• A Chinese perspective from Liu Peng on the protection of human rights as the core of constitutionalism;
• A German perspective from Gerhard Robbers that described the process through which post-WWII Germany, as an interrupted state, had to reach back into the best of its history—reclaiming the words of its 1919 constitution as a product of, by, and through the German tribes—to create the best of its future;
• A Singapore perspective from Toh See Kiat and Thio Li-ann that explored how culture precedes a constitution (even as a constitution can be a catalyst to changing culture), while comparing their experience to Kenya’s (as former British colonies that achieved independence in the mid-1960s) through the evolution of Singapore’s policies on the offices of president and prime minister, religion, and ethnic minorities;
• A Kenyan-American perspective of best practices from Makau Mutua, who encouraged political elites to take responsibility while ensuring the participation of civil society;
• A private meeting with President Kibaki and Prime Minister Odinga before the conference;
• A private meeting with President Kibaki after the opening ceremony;
• A private meeting with Minister Karua after the conference; and,
• A private reception for the IGE delegation at the home of U.S. ambassador to Kenya.

Impact: It is hard to gauge the impact of a three day conference in its immediate aftermath. An unorthodox metric, however, would be to compare the civility of previous discourses with this one. On the first day of the conference Minister Karua lamented openly the past conduct of Kenya’s constitutional conversations: “Look at how we have behaved. We do not want to hear each other…we tried to shout down each other.” At the end of the conference, I asked a veteran participant in Kenya’s constitutional march, Professor Kivutha Kibwana, what he thought. “This conference is very useful. We Kenyans were very subdued, listening. Usually we are shouting at each other. [This conference and the momentum that it generates] will work because it has to…we cannot go on this way [without a constitution] until 2012 [the next election].”

I think it is fair to conclude that some genuine momentum has been generated among the political elites—through the engaged presence of the president and prime minister, and the resulting discussion among delegates, many of whom had not spoken to each other since the post-election violence. This momentum is for the Kenyans to steward as they develop a new constitution, and re-position Kenya in the world’s eyes as a safe and democratic place to visit. This re-positioning begins with President Kibaki’s visit to the UN next month to attend the General Assembly.

Meanwhile, Kenya’s civil society has to be engaged as well. Immediately following the conference, Makau Mutua—Dean of the law school at State University, New York, Buffalo, Chairman of the Kenyan Human Rights Commission, and, IGE delegation member—brokered a meeting of civil society NGOs with Minister Karua. Karua told me that this initiative was a much-needed “ice-breaking” meeting to get serious conversations started again. Minister Karua agreed to meet with these NGOs twice a month to ensure that their voice is heard.

Finally, IGE has a new set of relationships to steward, in Kenya and across Africa. For example, during the closing ceremony Minister Karua thanked IGE for “floating this [conference] idea” and “helping [Kenya] to begin to conclude the journey we began long ago.” IGE has not worked in Africa before, but this event positions IGE as a neutral and respected facilitator that brings scholarly and relevant resources to bear.

Next steps: In cooperation with the Kenyan Ministry of Justice, IGE will publish a conference report. We are also in discussion with the Ministry about publishing a book that includes the best conference papers. Such a book will enable graduate (law) and undergraduate students throughout Africa to think comparatively about their own context. Meanwhile, IGE was approached by scholars from South Africa and Uganda about doing similar conferences and work in their countries. We will consider each of these ideas prayerfully while we continue to pray for, and assist when asked, Kenya as it seizes its future.

Last updated 24 November 2008