Ndung'u Wainaina: Constitution Must Build Just Society - The Star

Centrality of democratic constitutional order to a functioning democracy and stability is a recognised fact. Constitution making has become a way of renewal of a nation and state, as the new social forces emerge or assert themselves.

The role of the constitution is generally conceived in terms of governance, ways of the distribution and exercise of state powers.

Yet it can be said that while a constitution cannot guarantee democracy and stability in contemporary times, the two are impossible without a constitutional order with a broad commitment to its rules and the acceptance of the supremacy of the constitution.

The search for the rehabilitation of the state or the restoration of democracy starts with a new constitution. A new constitution must help build a just society.

Kenya must have a radical transformative democratic constitutional order. It is common knowledge that the first wave of reforms was introduced in a disconnected, piecemeal fashion, with no overarching explanation or vision.

This current mess in governance finds its genesis here. Kenya needs a new democratic constitutional order based on a completely new philosophy of management of public affairs. The constitutional order should act as the foundation base which reinvigorates democracy and protects civil liberties.

New democratic constitutional change is essential for two quite fundamental reasons: it is vital in enshrining responsibility to ensure the individual is protected against the shameless vested interests of the state; and it is a necessary means of advancing the potential of the individual in a wider community.

We need a strong society backed by an active and accountable government. The anticipated constitutional change is of historic importance for it signals the demand for a decisive shift in the balance of power. We are not tidying up the current archaic constitution but transforming it.

The new democratic settlement must recognise, first, that the individual needs proper and guaranteed protection to make government accountable. This requires a commitment to ensure that people can take part as much as possible in decisions that affect their own lives, that power is devolved as far as possible and that decision making is open and accountable.

In order to bring forth this new dawn we must be ready to tolerate and listen to each other. Constitutions are brought about through hard negotiations, building consensus and compromising. It has to be an agreement between peoples for the prosperity not for short-term agenda.

Don't write a constitution for 2012 or formula for constant winning of an election vide ethnic voting blocks. It is wrong to write a constitution with the intention of containing or locking out certain groups. Universal participation, accountability and justice are Kenyans' best guarantee of an energetic and prosperous society.

Social equality is crucial, but it is potentially very dangerous if not coupled with liberty.

Equality in servitude does nothing for democracy. If anything, it paves the way for tyrannical government.

Forty six years after becoming a sovereign state and republic it is a shame that we still need to take steps to ensure that all of us live in a common home. Many of us who do not have the right connections still feel like second class citizens. It is time that governance is divested of its power. Political leaders must relinquish some power, giving it to the people.

One way of building a common home is to take 'national' institutions away from the control of the government of the day.

A parliamentary system of government with the President as head of state and head of government would suffice this purpose. Parliament should stop being run like another government department. Under the new order Parliament would become an independent national institution and have enormous constitutional powers to enable it successfully hold executive to account.

Government must be more open and accountable to Parliament. All senior appointments must be made subject to parliamentary scrutiny; the main prerogative powers have to be subject to proper parliamentary control and there must be divesting powers of patronage over appointments.

Equality and liberty are the necessary prerequisites for a healthy and vibrant democracy.

To be truly equal, we must also be equally free. We want to create a society where mothers don't die while giving birth. Children will have the right to quality education. No one will die due to diseases.

Overall environment justice and sustainable development will be ensured by conservation and proper use of natural resources. The decisions made by the policy makers will not be for their personal gain but for the benefit of the poor and the marginalised as well.

Wainaina is the executive director of the International Centre for Policy and Conflict

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