Designing a constitution-drafting process: lessons from Kenya.

• Author: Bannon, Alicia L.

NOTE CONTENTS INTRODUCTION I. KENYA'S CONSTITUTION-WRITING PROCESS A. The Movement for a New Constitution B. The Review Act C. The Constitutional Review Process 1. The 2002 Elections and the Review Process 2. The Constitutional Conference at Bomas 3. Revisions to the Draft 4. The Referendum II. LESSONS LEARNED A. Lesson 1: The Benefits and Costs of a Participatory Review Process 1. The Participation Myt 2. The Benefits of Broad Participation in Kenya 3. The Costs of Broad Participation in Kenya B. Lesson 2: The Risk of Capture C. Lesson 3: The Need for a Veil of Ignorance D. Lesson 4: Mitigating Ethnic Tensions E. Lesson 5: The Need for a Process That Produces a Coherent Design F. Lesson 6: The Dynamism of Political Environments III. DESIGNING CONSTITUTIONAL REVIEW PROCEDURES A. A Limited Number of Drafters with Broad Consultation Duties B. Including Nonnationals as Delegates and Excluding National Politicians C. Adopting the New Constitution After the General Election D. Checks and Balances in the Choice of Delegates E. The Value of a Referendum CONCLUSION INTRODUCTION

Democratization and constitution-writing are frequent bedfellows, and the rise of democratic reform movements throughout the world has often been accompanied by pressure for constitutional reform. (1) More than half of the national constitutions in existence today were written or rewritten in the last thirty years. (2) This flurry of constitution-writing has generated a vast academic literature on the content of new constitutions. This scholarship recognizes that institutional choices such as separation of powers, the structure of the executive branch, and the centralization or devolution of power have implications for ethnic polarization and the risk of conflict, as well as for democracy promotion and economic development. (3)

But constitution-writing processes matter too. Procedural choices can affect the legitimacy of the final document as well as its content. As Bruce Ackerman has noted, "A workable constitution is worthless unless [the framers] can get it accepted...." (4) Scholars have recognized this principle and have made empirical, (5) historical, (6) and philosophical (7) arguments for how best to design the process of constitution-writing. (8) Most accounts place a premium on public participation and deliberation. (9) Strong versions argue that process is essentially dispositive of the success of the final product, (10) while moderate versions suggest that good process can at least mitigate ethnic tensions and the risk of violence by providing democratic legitimacy and by ensuring the "buy-in" of diverse communities. (11) Other commentators have taken a more pessimistic view, arguing that most constitution-drafting processes are doomed to failure because the compromises that drafters will be forced to make will undermine the final product. (12)

Despite this extensive theoretical literature, there is a dearth of "carefully targeted case studies" (13) on constitution-drafting processes, as well as a surprising lack of scholarly analysis of why particular constitution-writing processes succeed or fail. (14) As political scientist Donald Horowitz has observed, "[T]he spillage rates [between drafting and adoption] are great, but our knowledge of them is thus far so primitive that we can only regard spillage as being close to random in its incidence and configuration." (15) Most case studies of constitution-drafting experiences are purely descriptive, (16) and analyses that do use case studies to glean lessons about process typically focus on only a few examples: the experiences of North American and Western European nations (particularly the United States), (17) of societies emerging from conflict, (18) and of nations with constitutions imposed by outsiders, such as Japan (or, more recently, Iraq). (19) But many emerging democracies do not fit into any of these categories. Rather, many countries undergo popular democratic reform movements that involve lobbying existing governments for constitutional change. (20) These countries face unique challenges. Most seriously, a successful drafting process must avoid capture by the current government yet remain politically palatable to those same leaders. Furthermore, the fact that constitution-drafting is part of a broader democratic reform movement may itself affect what kind of procedural choices are necessary for public legitimacy. Analyses of countries with constitutions imposed by outsiders, or of countries that rebuilt institutions devastated by war or nullified by revolution, can only provide limited guidance. (21)

This Note attempts to fill that gap by examining Kenya's recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Kenya is a particularly valuable case study because it represents the relatively unexamined experience of an emerging democracy undergoing a popular constitutional reform movement. Furthermore, no other scholarly work has provided a detailed description of Kenya's recent constitution-drafting experience. (22)

Kenya's constitutional review process grew from a broader democratic reform movement and was designed to be "people-driven," (23) with broad consultation across the country and a representative constitution-drafting conference. Kenya was even cited as a model for the participatory approach to constitution-drafting. (24) Yet in November 2005, eight years after Kenya's drafting process officially began, Kenyans roundly defeated the proposed constitution in a national referendum: the constitution lost in seven of Kenya's eight provinces in an up-or-down vote, with 57% of voters choosing "No" overall. (25)

This Note details the history of Kenya's constitutional reform movement, discusses key lessons from Kenya's experience, and uses Kenya as a lens through which to consider how designers of other constitution-drafting processes might take these lessons into account. Among other things, it argues that Kenya's experience offers insight into the benefits and costs of highly participatory constitution-writing processes and that it illustrates the risk of capture by elites. This Note also makes concrete recommendations about how Kenya might have better structured its constitutional review process, including proposals about the size and composition of a drafting delegation, the role of existing governmental bodies, and the structure of a referendum.

1. KENYA'S CONSTITUTION-WRITING PROCESS

   1. The Movement for a New Constitution

      For many Kenyans, Kenya's current constitution is a symbol of both British colonialism and domestic political oppression. (26) Negotiated in London, the constitution dates to Kenya's independence from Great Britain in 1963. It is also a product of domestic political influence; Kenya's ruling party amended the constitution over thirty times, (27) for purposes that included centralizing power, strengthening executive authority, and, for a significant portion of Kenya's history, banning opposition parties. (28)

      While Kenya has been at peace since achieving independence, it has been a repressive one-party state throughout most of its history. (29) Kenya's first president was Jomo Kenyatta, a hero from Kenya's liberation struggle, who ruled from 1963 until his death in 1978 and created a de facto one-party state in 1969. (30) Daniel arap Moi succeeded Kenyatta and introduced de jure one-party rule in 1982. (31) Both Kenyatta and Moi silenced opposition, sometimes through the use of torture and intimidation. (32) They also used their political power for patronage, often in support of their ethnic groups and home regions, fostering resentment and exacerbating ethnic and regional tensions. (33)

      Agitation for constitutional reform in Kenya began in 1990-1991 and was accompanied by calls for multiparty elections, presidential term limits, and expanded political freedom under the highly repressive Moi regime. (34) The primary impetus for reform came from elites in Kenya's civil society, including religious and human rights groups, which mobilized opposition political parties and their supporters and which helped create a popular movement. (35) In 1991 Moi acceded to international and domestic pressure (36) and permitted a constitutional amendment reforming the presidential election process (37) and reinstating a multiparty political structure. (38) These reforms, however, failed to bring opposition leaders the gains they had anticipated, in part due to continued structural disadvantages in the political system. (39) By 1994, democratic agitation in Kenya had become linked with the call for a new constitution (40): "Constitution-making became the sole vehicle through which democratization, promotion and protection of human rights and social justice were robustly agitated." (41) This agitation led to additional moderate constitutional reforms in 1997 and to the enactment of the Constitution of Kenya Review Act ("Review Act"), (42) which was amended in 2001 to provide for a comprehensive review of the constitution and the option to draft a new document.

   2. The Review Act

      The Review Act outlined a three-step constitutional review process for Kenya: (1) public consultation and initial drafting by a small review commission, (2) revisions to the draft by a national convention, and (3) ratification by Parliament. Strikingly, the Act seemed consistent with many of the preconditions that scholars have argued are necessary for successful constitution-writing: it included several measures to ensure that the document was "home-grown" (43) and would create "a sense of ownership," (44) and it included checks to ensure that "the government [w]ould neither control nor unduly influence" the process. (45) In particular, the Act emphasized consultation with ordinary Kenyans and extensive deliberation among drafters, and it attempted to sidestep interference in the process by the President or by...