Dr. Edwin Wanjawa
Every political system lives by some principles and precedents, whether it is a constitutional system or not. In 2010, Kenya promulgated a constitution dubbed the “most progressive in the world” in many important quarters. 11 years down the road, Kenya still seems steeped in the puzzle of a constitution that cannot seem to entrench constitutionalism. This partly explains our mediocre development record and inability to progress well as a society, and why our peers at independence are now miles ahead.
Indeed, constitutions are primarily about political authority and the location, conferment, distribution, exercise, and limitation of authority and power among the agents of a state. Constitutions are concerned with matters of procedure as well as substance. They also include an explicit guarantee of the rights and freedom of individuals and corporate ideological pronouncements by which the state ought to be guided or to which it ought to aspire, and statements of the citizens’ duties.
The Constitution states and limits the powers of the organs of government and regulates the behavior of the citizens. One could reasonably contend that the Constitution is a logical instrument of the state and social control and regulation, bearing a higher status. It is said to have a higher status because it is supposed to govern all other bodies of legal rules in society.
Without constitutionalism, society is left open to a myriad of problems, most notably political. These relate to actions and inaction on the part of those in authority and include: general indiscipline and moral decline, corruption, unethical behaviour, political fanaticism, conflicting rules and regulations, poor management of resources, lack of good, accountable governance and general impunity.
Any constitutional dispensation that is not buoyed by a structure of societal values and principles of integrity, like ours seems to be, creates a disconnect between the state and the citizen, making it difficult for the citizens to count on the state. As a result, society becomes an arena of various conflicts, and the promotion of the common good is sacrificed.
Disregarding societal values and norms is another consequence of a constitution without constitutionalism. Norms are not laws but a way of life that has been adhered to by a group of people, accepted and passed from generation to generation. Adherence to this rule is voluntary, but society has a way of sanctioning erring individuals.
Whether it has a formal constitution or not, a political system reflects the principles of constitutionalism only when its powers and institutions are limited to the terms of the Constitution, which reflect the foundational tenets of commission and trusteeship. Under the standard of constitutionalism, governments must be bound by rules. To implement this standard, a constitution that reflects the principles of constitutionalism will serve as a higher law, which establishes and limits the government to protect individual rights.
Whether it has a formal constitution or not, a political system reflects the principles of constitutionalism only when its powers and institutions are limited to the terms of the Constitution, which reflect the foundational tenets of commission and trusteeship.
The value of a constitution with constitutionalism lies in its meaning to the relationship between the state and the citizens, which invariably brings about the much-needed social order. Thus, the foundation of a sustainable social order in any society is based on the cordial relationship between the state and the citizens as established by the Constitution. When the enabling environment is visible, there will be an efficient social contract defining the society’s rules.
A social contract is transactional. It provides for a situation where people are more tolerant of one another to live happily. It is a transformational agreement built on trust, providing a place where citizens can become fully human by having an identity rooted in respect for others. In this regard, any constitution without constitutionalism may create a disconnection between the state and the citizens, making it increasingly difficult to rely on the state.
For Kenya to move forward, there is the need to transition to a constitutional regime governed by constitutionalism. The government and its agencies should take action on reported acts of indiscipline, corrupt government officials, political fanaticism, mismanagement and bad governance. If these are reined in, ours will become a society dogged by conflict, one that sacrifices common good on the altar of selfish interests.
Dr. Wanjawa teaches at Pwani University.