By Yash Pal Ghai
Few constitutions place so much importance on values and principles as Kenya’s. The reason is that our Constitution is about nation building – to promote national unity and solidarity, and State restructuring.
Each requires the affirmation of certain values. For nation building, the emphasis is on equal citizenship, and the recognition and inclusion of all communities in the State. State restructuring requires values of democracy, participation, accountability and the rule of law as well of participation and inclusion.
They depend on a vision of ourselves as a people and country, on the sense of our identity, and of the commitments that we can be proud of – to human dignity, diversity, integrity, fairness and social justice.
The Constitution seeks to achieve these objectives by defining values and principles as foundations of the nation and State – and by constantly reiterating them. National values and principles constitute the framework for the exercise of State power, and the spirit in which we relate to fellow citizens and the communities to which they belong.
The Constitution does not state values and principles, but weaves them integrally into the powers, structures and procedures of State institutions. The State and all of us, in our capacities, are bound by constitutional values and principles.
The Constitution has many provisions to ensure values are respected and followed, so they do not remain merely aspirations to which pay lip service is paid routinely just as they are violated daily.
The succinct statement of values is Article 10 and includes patriotism and unity, sharing of power, democracy, participation and rule of law, dignity, equal rights and justice, integrity, transparency and accountability in public life and institutions; and sustainable development.
Democratic practices
These values are formulated in terms of the structures and goals of institutions; and they are made binding in a number of ways. Most chapters begin with a statement of the objectives and responsibilities of the institution concerned.
For example, political parties must observe principles and practices of democracy; promote national unity; respect human rights; avoid violence and corruption.
The President must follow and safeguard the Constitution, enhance national unity, and protect rights.
Similar obligations bind Parliamentarians. Judges must provide justice to all, irrespective of status, promptly, and in a way that promotes purposes and principles of the Constitution.
Of particular interest are principles and obligations of State services, underpinned by the fundamental principle that the responsibility of a State officer is "to serve the people, rather than the power to rule them". Chapter 6, on leadership and integrity is particularly important, establishing high standards of integrity and commitment. Article 232 sets out very high standards of public administration, particularly relating to ethic, efficiency, and inclusion.
Not surprisingly, values are a response to our past and present—corruption, authoritarianism, land grabbing, marginalisation of communities and regions, the appalling poverty in which millions of Kenyans live.
The makers of the Constitution realised that there would be great resistance to these values. So they paid particular attention to how they could become part of Kenya’s political and civic culture. By frequent references to the supremacy of the Constitution over other laws, they give special responsibilities and powers to the judges, strengthen their independence and resources, and allow citizens to access courts easily to seek the enforcement of the constitution.
The Constitution requires those who interpret it to adopt interpretations that promote its purposes, values and principles or advance the rule of law and human rights.
The role of the Judiciary is crucial, as both the executive and the legislature were expected to be, and are, hostile to the Constitution.
Public office
A way to ensure the critical objective of honest and competent public services is to specify high standards in the qualifications for public office.
The recruitment must ensure that only those who satisfy these qualifications are appointed, and those already in office who breach the prescribed standards must be removed. In this way there will be a renewable of public services and the restoration of confidence in State institutions.
A number of independent commissions are established to uphold national values and principles—such as for national unity and cohesion, individual and group rights, integrity, accountability, free elections, fair distribution of resources, and equitable ownership and use of land.
Structure of Government and allocation of State powers are designed to enhance checks and balances, decentralise the State, and promote transparency. There are obligations on State organs to establish affirmative action policies, including representation to help the disadvantaged.
Socio-economic rights are now included in the Bill of Rights to remove the deprivations from which many Kenyans suffer—in the fields of education, health, water and shelter. Almost every provision speaks to the agenda of national values and principles. It is truly remarkable how much the values suffuse every institution, process and procedure established by the Constitution. No exercise of State power is valid unless it conforms to national values—and there are mechanisms to declare it void.
Overall progress
Much of this is so far on paper. Some progress has been made through laws (though not policies so for), the Judiciary is being rapidly reformed and professionalised, and some new institutions with specific responsibilities for achieving values have been set up. But the overall progress is small; the Government and Parliament continue to exercise their powers in violation of constitutional values and principles, and impunity reigns supreme.
Responsibility for achievement lies with the people – people’s sovereignty and public participation are the highest constitutional values; indeed they are the very foundation of the Constitution.
