This week Katiba Institute, with the cooperation of various civil society organisations, held a one-day event at Ufungamano Hall, on an “Audit of the Constitution”.

We are not talking about whether money has been spent in the right, lawful, and cost-effective way (as the Auditor General does). However, the underlying idea was similar: There is a set of rules and guidelines about how something should be done — how does actual behaviour measure up to expectations?

Colleagues will write soon about that event. But this article is a response to the contribution of a participant who said he was a computer programmer. And, he went on, “If we find that a computer programme repeatedly does not achieve what it was intended to achieve, we would change or scrap the programme.”

He also said that the Constitution had too many “aspirational” ideas, not precise enough — implying that they ought to be precise so that everyone knows exactly what is expected. Again — the idea was — like a computer programme.

It might sound like a neat idea: A computer programme is a set of detailed, and extremely precise, instructions to a computer.

It tells the computer exactly what to do with certain information (computer people call it “data” but that simply means information that is given) and certain commands issued.

If the instructions are not exact, the computer will do nothing or do the wrong thing.

A constitution, you might think, is also a set of instructions, but about how to form government institutions, or how to govern the country. If it is not achieving the result we expected, maybe there is something wrong with the instructions.

WHAT IS WRONG WITH THIS?

First, if you feed an instruction into a computer, it exercises no choice. A human being has preferences, and individual characteristics, that will affect the person’s reactions to instructions.

Second, a computer programme is developed by an expert. It is not a matter of negotiation and compromise. That would probably be a disastrous way to make a programme – but is an essential way to make a constitution.

Third, a computer programme is something that can easily be changed. But a constitution is deliberately made hard to change — because it reflects the people’s will.

This means that some provisions have to be capable of being used in different ways, at different times, so that the constitution does not become out of date and unworkable.

A constitution is a tool. It operates when people use it — both those in government and the people themselves. Some computer programmes may be able to be used for good and bad purposes.

It may be impossible to control how people use computers and software (programs) that make them work. To that extent programmes and constitutions may be similar.

DIFFERENT TYPES OF INSTRUCTIONS IN CONSTITUTIONS

Some constitutional provisions do in fact work almost automatically. If you want to achieve certain results, you may have to behave in a certain way.

To appoint a Chief Justice, you have to go through an appointment process, involving the Judicial Service Commission, the President (who has no choice) and the National Assembly.

To get a valid Parliament, you must have elections, there must be a certain number of constituencies (the number is fixed in Kenya’s Constitution but not in many others).

Former President Mwai Kibaki signs the documents of the new constitution as former AG Amos Wako looks on at Uhuru Park during the promulgation of the constitution ceremony in 2010.

Former President Mwai Kibaki signs the documents of the new constitution as former AG Amos Wako looks on at Uhuru Park during the promulgation of the constitution ceremony in 2010. 
Image: FILE

Some constitutions are only about the machinery of government. They are made up almost entirely of this sort of rule: if you want to do X you have to first do Y and Z.

This type of constitutional provision is the easiest to operate and is the most like a computer programme instruction.

Even here, humans must use the tool of the constitution, and especially if you have a decent Judiciary, it is possible to make the rules work.

So when an effort was made to give the President a choice about the Chief Justice, by changing the ordinary law, the court said that law was unconstitutional — but only because a human being went to the court.

Our computer programmer might be surprised to know that even such rules will quite often have to be interpreted by the courts.

Then there are types of provisions that have to cover a lot of circumstances. The Constitution says that everyone is equal.

It is wrong to treat them unequally because of some irrelevant reasons such as their sex, age, or religion. But the constitution cannot give detailed instructions about every situation, every varied personal characteristic.

An ordinary law may do so, for example, the employment law may say a lot about how equality works in that context.

Other types of provision are even less automatic. These are the sorts of things that our conference participant had particularly in mind. Kenyans adopted some basic principles in their constitution.

These are those in Article 10 (such as patriotism, transparency, public participation) as well as those found in provisions about political parties, about the public service, about relationships between national and county governments.

They are intended to make the human beings that work in government and public life, and even ordinary citizens, think carefully about what they do.

The former Chief Justice used the idea of patriotism when he talked about the need for a “patriotic jurisprudence” — decisions that met the needs of the people of Kenya and moved the law in the right direction. No document could tell us all what patriotism requires in every situation.

Some of the principles can be spelt out in more detail for particular situations. An example is transparency. We have a right to information the government holds (Article 35) and this has been expanded in an Act of Parliament. Our Act is shorter than in many countries, but even so, could not all be set out in a constitution. All our law must be compatible with the Constitution, but this does not mean it can all be part of the Constitution. Already, some people think the Constitution is too long.

COMPROMISES

Individual and groups have different ideas of what is right, and what is in their own interests. Sometimes a constitution has provisions that reflect compromises — trying to get something that everyone will feel about to live with, even if everyone may find in the document something they are not totally happy with.

Sometimes compromises are about government matters: Prime minister or president or a mixed system; devolution or not, or how many powers to counties, for example.

Sometimes they are about rights and even moral issues. Abortion is such an issue. Our Constitution says it is not permitted, unless the life or health of the mother is at risk, in an emergency, or a law permits (leaving Parliament to decide on the last).

A public opinion survey in 2010 showed that if you asked Kenyans “Should abortion be allowed?” most would say “No”. But if you asked “Should it be allowed if the life of the mother is at risk, the health of the mother is at risk or the pregnancy is because of rape?” people thought differently. What is in the C Constitution does reflect very much what Kenyans thought.

Recently, the High Court affirmed this — because the Ministry of Health had withdrawn some guidelines that had been intended to guide the medical profession on deciding when an abortion would be allowed, and how it ought to be done.

Often what we find is human beings trying still to re-open, through ordinary law and the courts, battles they lost during constitution-making, and overturn the compromises.

CONCLUSION

Problems arise not only because human beings are self-interested, often manipulative, and often corrupt (though this is true). It is also because situations are enormously varied. Even well-intentioned human beings may sometimes not be clear what is to be done.

A constitution gives rise to a dialogue in society, including with the courts. Kenyans must continue to talk to each other, including with government, about what the Constitution means and requires. If we don’t do this, is the problem with the Constitution, or with human beings?

By Jill Cottrell Ghai, Director, Katiba Institute

This Article was first published by the Star Newspaper on 22nd June 2019