A Constitution as Higher Law

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I am moved to write this month by Professor Yash Ghai’s recent essay about the perils, purpose and promise of revising a still fairly newly popularly approved Constitution. Kenya’s prolonged and successful effort to write and secure strong popular approbation for what I believe is as a model constitution stands out as one of sub-Saharan leading achievements of the, sadly, now fading democratic era, and not just in Africa.

Professor Ghai’s essay reminds me of an issue that struck me as singularly important as I concluded a tour as USAID’s Regional Democracy and Governance Advisor for Eastern and Southern Africa in the mid-1990s. Particularly, as I reflect from a distance on the quite dissimilar current situations of Kenya and Ethiopia, the issue strikes as growing in importance and seriousness even as it appears to continue to go largely unrecognised.

Stated baldly, for a constitution to become what it is supposed to be, it must become universally recognized as higher law, on a political plateau as a document representing enduring consensus on fundamental principles for sharing existence as a polity community. It must be a heavy counter-weight of consensus balancing on the day-to-day and year-to-year dimensions of political competition and conflict. In a word, a constitution is not simply a convenient set of operative governing rules and procedures but a document that sets forth enduring consensus principles by which those rules and procedures should be established. Those principles should be formulated as carefully and thoughtfully as possible so that they can indeed endure. I would have thought and hoped that Kenya’s 2010 constitutional achievement would have singularly met that standard.

A “constitutional” principle of mine in writing these columns is to stay above and outside partisan politics, and so I shall. That said, it does appear to me that the elevation of even Kenya’s 2010 Constitution to the status of higher law, and not just a framework for working governing practices, has not been secured. For Kenya, this problem, for all its difficulty, may not be as serious as in neighbouring Ethiopia, where it is not clear yet that even the reformers recognise that the much needed realisation of basic human rights depends on a replacing 1995 one party constitutional document on the basis of a process at least as thorough as Kenya’s.

Concealed in this serious problem is a deeper one: what does it mean to elevate a constitution to the status of higher law so that its precepts are routinely honoured even if their meaning is, predictably, contested, so that the constitution truly remains a living document? And is the term “higher law” even the right one to express what is needed?

Absent a thorough bibliographic search, the only use of the term “higher law” with reference to constitutions was by the distinguished mid-20th Century American constitutional scholar, Edward S. Corwin, in two magisterial articles originally written for the Harvard Law Review on the “Higher Law Background of the U.S. Constitution, written in 1928-and 1929! The articles find that higher law background deep in the millennia-long Judaeo-Christian heritage in which America has been embedded and, implicitly, that its constitution had been helped to be sustained in that way.   

How totally remote in so many obvious ways is this legacy from current African circumstances!! And, yet, somehow there needs to be some concept(s) to serve that all- purpose that fit contemporary African circumstances. Clearly, this challenge is related to that of recognising that the never fully reconsidered, routinely tacitly or implicitly relied-upon Weberian concept of the state as monopoly of legitimate coercion needs serious revision in order to get at the constitution problem. That idea of the state itself, as Sudanese scholar Francis Deng has emphasised, is perhaps the last remaining fundamental colonial legacy. Kenya, like most of sub-Saharan Africa has built its democratic era constitutions on the legacies of deeply flawed surrogates that some have called “colonial states.” Ethiopia, with its imperial past, lacks even that legacy as it currently contemplates a renewed quest to establish a truly modern and legitimate state.

Somehow, in African countries as a diverse as Kenya, Ethiopia, and many others, I agree with Professor Ghai that constitutions have to be built six decades after independence in such a way that diverse communities conceive themselves as one people within each polity. These peoples must be aided to establish and deepen constitutional cultures such that they, joined but not dominated by their political leaders, can and do take resolute ownership of their duly constituted states.

From whence will come those who will initiate and lead this next stage in democratic liberation? Civil society? Youth? National or subnational political leaders? (

— Writer is professor of Political Science Emeritus, and professorial lecturer of African Studies at Johns Hopkins University

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