Popular authorship and constitution making: comparing and contrasting the DRC and Kenya.

• Author: Gathii, James Thuo
• Position: Democratic Republic of the Congo

INTRODUCTION

African countries have produced a torrent of new constitutions since 1989. (1) In addition to these new constitutions, there has been an exponential growth of nongovernmental organizations monitoring compliance of African governments with the new constitutional requirements. (2) What is more striking is that constitution making in countries like Kenya involved the most widespread discussion among ordinary citizens, outside of nongovernmental groups. In many countries with new constitutions, vigorous discussions on the need for a commitment to and compliance with the rule of law and respect for human rights "infus[es] the capillaries of everyday life" in a manner unimaginable in the repressive political climate of two decades ago. (3)

In conflict-ridden countries, constitutions have come to symbolize a commitment to make a complete break with the past. (4) This means in the DRC, a break from Mobutuism; in Uganda, a break from the legacy of Idi Amin; in South Africa, a break from apartheid; (5) in Eritrea, a break from the repressive constraints of Ethiopia; and so on. The use of a constitution to symbolize a break from the past was aptly dramatized by the South African Constitutional Court in its very first decision. (6) According to the court in a subsequent decision:

The South African Constitution ... represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. (7) Yet notwithstanding the commitment to make a complete break with the past, some continuity with the conflicts of the past and of repressive authoritarian practices has been evident in countries as diverse as Uganda, the DRC, and Ethiopia. Although symbolizing the effort to break with the past, constitutions in several countries, including the DRC and Uganda, have also legitimized--through electoral processes--political leaders who were once warlords. The DRC, which has witnessed the birth of two new constitutions in the last five years, (8) is a good example of a country that continues to experience disorder, lawlessness, and war alongside its new constitution. By contrast, the Constitution of the Republic of Kenya has survived a complete overhaul following several years of constitutional drafting, redrafting, and minimal amendments. (9) Eventually, a new constitution was rejected in a referendum in November 2005 following a broadly consultative, participatory, and contentious drafting process. (10) This is all expected to change sometime in 2008, however, following the eruption of violence in the wake of the disputed election at the end of 2007. A political settlement being debated will require major constitutional reforms.

The constitution-drafting process and its approval in the DRC was a significant part of a peaceful political solution to war. As such, the constitution as a charter limiting the authority of the executive and separating power between the branches of the government was not a primary motivation for the adoption of the constitution. Rather, in this Article I argue that the 2005 Constitution was seen as symbolizing a break from the past, and that the people of the Democratic Republic of the Congo seized a rare opportunity to end the wars in their country by overwhelmingly adopting a constitution that they had not participated in writing.

In both Kenya and the DRC, constitutional drafting was dominated by the incumbent parties. Interestingly, in Kenya, where there was more widespread discussion of the drafts, the constitution was resoundingly defeated in the referendum of 2005. (11) By comparison, the much less widely discussed 2005 DRC Constitution was approved by an overwhelming 84 percent in a referendum. (12) This contrast may arise from the fact that constitution drafting in post-conflict nations like the DRC during internationally supported transitions is likely to be dominated by incumbent leaders but, nevertheless, be widely approved. On the other hand, countries not experiencing significant conflict exhibit more political openness, but may experience difficulties in the approval of a constitution limiting the power of an incumbent government in a referendum. It may very well be that when people "find themselves with all the time they need to find a good solution, no solution at all may emerge," (13) as the Kenyan experience so far seems to suggest. By contrast, the dueling parties in the DRC conflict literally had their backs against the wall, and although the constitution drafting process commenced in a manner that did not allow popular authorship, the urgent need to address the longstanding conflicts in the country accounts for the overwhelming approval in a referendum of the 2005 Constitution. (14)

This Article proceeds as follows: In Part I, I examine the factual background to constitution making in the DRC and Kenya. In Part II, I compare and contrast questions of constitutional legitimacy, validity, and efficacy in the constitution-making processes of the DRC and Kenya. I end with the conclusion that whereas in Kenya widespread participation and consultation resulted in voting down the constitution, in the DRC minimum participation did not affect its overwhelming approval.

1. BACKGROUND TO CONSTITUTION MAKING IN THE DRC AND KENYA

   1. Constitution Making in the DRC

      The writing and promulgation of the DRC's new constitution was provided for by international agreement; the new constitution replaced the transitional constitution enacted on April 4, 2003, which arose from the Pretoria Agreement. (15) The Pretoria Agreement provided for ending the five-year war in the DRC and also called for a constitutional referendum and national elections within three years, with the possibility of two six-month extensions. (16) Under this agreement, a new constitution was to be written and promulgated, and national elections were to be held by the end of July 2006. (17)

      The constitutional commissions that drafted the 2003 transitional constitution were appointed by President Kabila. (18) This followed an agreement on March 11, 2003, among parties to the inter-Congolese dialogue, to begin a program for the drafting of the new constitution and for a future unified army. (19) The transitional constitution and army were to last for a period of a national transitional government eventually leading to national democratic elections--which eventually were held in July 2006. (20) Drafting began soon after and was finalized by the Congolese Constitutional Commission in October 2004 after a high-level European Union official flew to Kinshasa to dissuade President Kabila from endorsing an authoritarian constitution. (21) It was finalized at a retreat in Kisangani in October 2004. (22) The constitution was thus drafted in approximately 1.5 years. (23) Only the larger political parties were represented in the commission and participated in the drafting of the new constitution, (24) indicating that there was little widespread discussion of the draft. In fact, to the extent there was consultation, it appeared that the views of the people were ignored. For example, a Senate committee prior to the enactment of the constitution found widespread opposition to the death penalty, but the senators ignored these public views and inserted provisions allowing the death penalty for certain offenses. (25)

      The DRC drafted the constitution with the assistance of France, Mauritius, Belgium, and the United States. (26) International organizations also assisted in the drafting process, including the Electoral Institute of South Africa (EISA), (27) the Konrad Adenauer Foundation (KAF), (28) USAID, (29) UNDP, (30) and the United Nations office in the DRC. (31) The U.S.-based National Democratic Institute for International Affairs (NDI) supplied technical support in addition to recommending changes to the draft constitution. (32) The Justice and Peace Commission of the Catholic Church, joined by USAID, developed and distributed a precursor draft of the new 2005 draft constitution. (33)

      As the first step toward enactment, the draft constitution was presented to the Senate and the President of the Chamber of Parliament on October 29, 2004. (34) The draft was then adopted by the DRC transitional parliament--known as the National Assembly--on May 13, 2005, and submitted to the popular referendum. (35) The referendum was held on December 18-19, 2005. (36) According to official results, 84 percent of voters approved the constitution, which was officially promulgated on February 18, 2006. (37) The country's first national democratic elections in over forty years took place a few months later, on July 30, 2006. (38)

      The constitutional referendum and subsequent national elections were widely considered procedurally successful. Before the referendum, the Independent Electoral Committee (CEI) circulated over 500,000 copies of the proposed constitution--about one for every fifty voters. (39) Additionally, the constitution was not translated into all spoken Congolese languages, including Kingwana, a broadly spoken dialect of Swahili. (40) As a result, despite their awareness of the campaign, many voters were unaware of the constitution's content. Many voters, however, relied on the Kabila-led transitional government's assurances of social improvement. (41)

   2. Constitution Making in Kenya

      The debate on reforming the Kenyan Constitution started in earnest in the late 1980s and peaked in the early 1990s. The authoritarian governance of the Moi regime and its tinkering with the constitution against the backdrop of the end of the Cold War, coupled with dramatic changes in Eastern...