Why the Bomas draft is the best constitution we never had

I would like to thank Jill Cottrell for her assistance in writing this article. She and I have studied the making of constitutions in many countries. We not only studied constitution making in many states but participated in some – as in Kenya.

I begin with the story of my involvement in the process of constitution making in Kenya. Born as a Kenyan, I was banished by the then Attorney-General, now 100 years old, for reasons no one knew. I spent many years abroad teaching law and helping various counties in constitution making. So I was greatly surprised when President Daniel arap Moi invited me to head the process of reviewing our Constitution.

Had the process turned out differently, we would be marking the 16th anniversary of the Bomas draft Constitution now, rather than the 10th anniversary of the 2010 Constitution. We know that nearly 75 per cent of Kenyans are under 35. The oldest of these would have been about 18 at the time the Bomas draft would have become Kenya’s Constitution. To them the occasional reference to “Bomas” in the media, or the speeches of politicians, must be mysterious.

The background

The Constitution of Kenya Review Commission (CKRC) produced a draft in September 2002, which, in April 2003, began to be debated by the National Constitutional Conference, which met at the Bomas of Kenya — hence the name.

The conference adopted a draft that was by no means identical to the CKRC draft in April 2004. The scheme was that it would go to Parliament to be adopted

To understand that, you have to know a bit about what had gone before. We had had constitutions since before independence. The Constitution adopted just before independence had not just been nibbled away at by successive governments, but chewed up, starting almost immediately after the celebrations of December 12, 1963.

As Presidents Kenyatta I and Moi took more and more power to themselves, weakening the Judiciary, political parties, the rule of law, rights, and the people, they amended the Constitution to enshrine their changes.

So when opposition to their type of autocratic and cruel rule swelled in the 1980s and even more in the 1990s, it often took the form of demands for a new Constitution.

The process

Though an official process began at the very end of 2000, a people-based constitution-making process had begun early in the ’90s. Many of the ideas about how to make a constitution and the principles it ought to contain had been refined and were set out in law that prescribed how the official process was to be carried out. The CKRC and the Bomas conference faithfully followed these.

It was very much a people-led process. The resentment — and incomprehension — on the part of the ruling elite at this undermining of its status and role was clearly demonstrated by President Moi’s question about what could Wanjiku possibly know about making a constitution.

Picked up by cartoonists — and sculptors — this stupidity gave us the figure of Wanjiku as the enduring everywoman who sees through politics and politicians, not to mention bureaucrats, and punctures their pomposity and pretensions.

The CKRC began its work by travelling all over the country to inform Kenyans what the whole thing was about. Initially, the people were suspicious. They were not used to be asked, and feared repercussions for having expressed their opinions.

But when commissioners came back, some time later, and gave them time and encouragement to express their views (and kept out MPs and Provincial Administration officials), they became emboldened and flocked to give their views.

In its first report, the CKRC summarised what people had told the commission. A remarkable list of 13 main demands that still resonates today as a blueprint for a new Kenya includes: a decent life: with satisfaction of the fundamental needs of food, water, clothing, shelter, security and basic education; justice for past wrongs especially on land; MPs who work hard, respect us and our views; an end to corruption; police who respect the citizens; women to have equal rights and gender equity; and honest and accessible institutions to ensure accountability.

Bomas was the most representative body of Kenyans ever assembled. Officially 629-strong, in reality attendance was usually in the 400s.

One-third were MPs (many of whom came, if they came at all, to collect allowances only). About one-third were elected at the district level (74 districts) and the rest from civil society bodies — religious-, professional-, gender-, political-, or issue-based.

Some issues were very controversial, others readily agreed. But all views were given a chance. Some issues threatened its very continuation. But in the end it adopted its draft, in an atmosphere of great enthusiasm and optimism in the conference hall and in the nation.

Content

The CKRC and the Conference had several visions. First, of a united Kenya in which people could feel a genuine loyalty to the country, because that country recognised their identities as members of particular communities with their own traditions, languages, religions and cultures, but did so in a way that enabled everyone to feel they were working towards a common goal of justice, equality and inclusion.

Second, of an active society of people who did not just vote every five years and then go to political sleep again, but were involved in decision making. Third, of a government that was effective, accountable, considered itself the servants of the people, and abandoned corruption.

Fourth, of a country that faced up to the wrongs of the past, including, particularly, land injustices, but also past discrimination and exclusion.

Traditionally, constitutions were about institutions, particularly those elected by the people. They were mostly about who got into power and how, but rather less about how that power was exercised.

True, a concept of separation of powers — allocating different types of powers to different aspects of the machinery of the state so that too much power was not allocated or exercised by too few hands — had been around for centuries. But this was a balance between different bits of the official state machinery.

Like various other modern constitutions, the Bomas draft was as much about the people as about officials and institutions. Issues of the sovereignty of the people, of who was a Kenyan, of taking a more inclusive view than in the past, and of culture were prominent.

The Bill of Rights chapter, the longest in the Constitution and perhaps the longest Bill of Rights anywhere, is about the people — what they are entitled to as human beings, but also about their obligations, because the rights are not just something you have against the state, they are also duty of all of us. Values and principles — not just in an article called “National Goals and Values” — pervaded the document, introducing almost every chapter.

Institutions were designed to achieve these objectives. The President would be very different from in the past: with some significant powers, but not of a policy-making kind. The Judiciary was to be revitalised and empowered to be a true guardian of the Constitution.

Devolution was to combine the function of bringing government closer to the people, enhancing democracy of an active kind while avoiding ethnic divisiveness. Past injustices were to be addressed by positive action to overcome past discrimination, and by the National Land Commission dealing with both recent and historic injustices.

Isn’t this all still there?

Much of this may be familiar — and quite rightly. The Bomas draft did not disappear. Parts of it — those that politicians did not like — did disappear in what became known as the Wako Draft in 2005. This was rejected in the referendum of that year.

After the post-election violence of 2007/8, in the settlement brokered by foreign as well as Kenyan initiatives, the idea of a new Constitution did not exactly resurface (it had never sunk entirely) but was given new impetus.

And the Bomas draft was very much the foundation of the first Committee of Experts draft in 2009. And much of it remained in their second draft.

Indeed the often-made statement that “80 per cent of the various drafts remained the same” may be true of Bomas and the final Constitution — especially if 80 per cent refers to word count. The sudden and seismic shift to a presidential system as late as May 2010 — by politicians — permeates the whole way the Constitution works, however.

The Bomas draft wasn’t perfect — no constitution can be. Some of the more creative and promising provisions of the draft presented at the conference disappeared under the impact of politicians — when they bothered to attend. An example is the recall of MPs, which did reappear in Committee of Experts’ drafts, and in the Constitution as adopted, only to be stymied by Parliament.

Prof Ghai is a constitutional lawyer and headed the Constitution of Kenya Review Commission. This article is part of a series to mark the 10th anniversary of the promulgation of the current Constitution.