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12.07.2009

Observations on Kenya’s Draft Constitution I


Kenya’s draft constitution is now in a period of public comment. The draft is long—over 300 articles—and is all in all a very impressive piece of work. It features a semi-presidential system, an extensive bill of rights, and significant devolution of power to the local level. If adopted, it will represent a significant transformation of Kenya’s formal governance structure.

The process is that public comments will be collected until the middle of this month, followed by a three week period in which the Committee of Experts will make changes to the draft. The draft then goes to parliament, where it will be adopted unless a 2/3 majority votes to reject it.

There are several novel institutions in the Kenyan draft. One that caught my eye was the attempt to constitutionalize the reporting obligations to international human rights treaty bodies. Article 30(6) of the draft requires the State to report on time to international human rights bodies, and go through a type of notice and comment period before submitting them. The Article goes on to require the state to disseminate the General Comments and Recommendations of the international rights bodies concerning Kenya.

This institutional design seems to try to leverage the international human rights treaty bodies, which are better at generating information than enforcing norms. The reports will be generally made available to Kenyans. At the same time, the mechanism will raise the cost of obfuscation before those bodies, and so possibly make them more effective. Given Kenya’s recent history of ethnic conflict and human rights abuses, this would be a welcome development.

Another feature of the draft is the creation of a new Constitutional Court. However, the Court will only be the final court of decision with regard to electoral disputes. Other decisions of the Constitutional Court can be sent to the Supreme Court. This is a novel approach but not likely to function effectively.




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