Debate on Draft Constitution masks the unwritten laws

By Linda Musumba

As we continue to engage with the Harmonised Draft Constitution, it is imperative that we appreciate some of the contingencies and exigencies inevitably brought to bear in the ensuing debates.

Of particular significance are the connotations conjured in the minds of Kenyans when the word constitution is uttered.

Evidently, through the agonising battles fought in the name of constitutional review over time, the meaning of that seemingly innocuous word, ‘constitution’, has changed forever in the minds of Kenyans, having acquired an almost dirty and obscene meaning.

It is the case that as Kenyans leaf through the pages of the Harmonised Draft Constitution and ponder the text, they do so with a certain background of what the institutionalisation of this new constitution may and could mean for them.

Essentially, when looked at from the eyes of a Kenyan, the text of the draft acquires a special meaning that is imported from their past and present lived experiences as Kenyan citizens.

This reflects Upendra Baxi’s ideas about the existence of an unwritten constitution behind every written one.

He argues that in every state there are underlying dynamics emanating from customs, norms, and other pertinent historical socio-political factors, which even though not codified expressly in the written word of the constitution, are nevertheless very influential and abiding.

Unwritten law

Their influence has been found to be so strong as to cause alterations, even major ones, to the ordinary meaning of the text in the written constitution and the implementation thereof. Baxi further states that the unwritten constitution continually hovers over the written constitution threatening in some cases to supplant and even replace it.

In other words, the unwritten constitution can reduce the written constitution to a mere piece of paper.

A practical example of the workings of the unwritten constitution in Kenya can be found in the equality clauses.

For instance, the text of the present Constitution declares all Kenyans as equal.

However, it is obvious to all that being a poor person in Kenya reduces ones status and bargaining power in many different ways.

One’s poverty means that if they are on trial in the criminal courts for a capital offence punishable by death, they cannot engage the services of the best lawyers to defend them.

A suspected criminal on trial therefore has to pay good sums of money to engage the services of a good lawyer, in the absence of which they are likely to be convicted even though they may have gotten an acquittal or reduced sentence.

Whereas the written constitution states equality for all, evidently the unwritten constitution dictates that to be poor in Kenya is a tragedy because your options in life will be very restricted.

Furthermore your dignity will be eroded because of the absence of basic needs and basic rights, your voice will not be heard because you command no presence at the table or forums where the decisions that matter are made, sadly your healthcare will not be assured, and neither your prospects in education despite your best performance.

Questions and inconsistencies

What about ethnicity? Is being a Luhya in Kenya the same as being a Digo, Somali, or any other ethnic tribe? With regard to equality of the sexes, is being a woman in Kenya really the same as being a man? While we are guaranteed freedom of movement including habitation anywhere in Kenya, didn’t the post-election violence make it clear that in fact we are not free to move and settle anywhere?

These and many other questions and inconsistencies demonstrate the existence and operation of the unwritten constitution by which we live and abide by unconsciously.

In moving the process of achieving a new constitution for Kenya, it is therefore necessary that the terms of the unwritten constitution are identified clearly and grappled with.

These terms should in fact form one of the key pillars underpinning any civic education efforts and initiatives, to avoid discussing the text of the Harmonised Draft without taking into account the potentially destructive terms of the Unwritten Constitution of Kenya.

If the Harmonised Draft Constitution and the ensuing consensus seeking process do not actively and directly address the factors that underpin the Unwritten Constitution of Kenya, the fears of having a sham constitution are real.

—Dr Musumba ([e-mail]) is Lecturer in Constitutional Law, Kenyatta University School of Law.