Yash Pal Ghai and Jill Cornell - New constitution is already in place

Some people have assumed that, like any other law, the new constitution needs to be signed by the President, and that this is what "promulgation" means.

But the designers of the constitution-making process that is just drawing to an end were very cautious. They learned from the debacle of Bomas, and decided to make this a process in which it was actually true that the people of Kenya were giving themselves the constitution -which is what the Preamble says.

The design required neither Parliament nor the President to assent to the document. Parliament had a chance to propose changes by a two-thirds majority - which they signally failed to do in April this year, being unable even to muster a quorum for the vote in most instances. No positive endorsement of the document was required by the current Constitution's special Article for enacting a new constitution - as we have argued previously. This lack of control clearly did not appeal to Parliament, which insisted on approving the document.

The final act necessary to enact the Constitution has taken place -ratification by the people in the referendum. If nothing else happens, the new constitution comes into force 14 days after the "final" referendum results are published.

However, out of courtesy to the President, perhaps, an act of promulgation was decided upon.

Promulgation usually refers to making the law public. A leading law dictionary gives the following possibly relevant meanings: to put into force or effect; the official publication of a new law, by which it is put into effect; to make a law publicly known after its enactment; to declare or announce publicly.

Various methods have been used historically to promulgate laws. In England in the 14th Century, laws were physically taken throughout the country, and the Constitution of Indiana in the US still says a law does not take effect until it has been "published and circulated in the several counties of the State".

The Queen's small dependency, the Isle of Man, still carries out a public, open-air ceremony of proclaiming laws. It is now restricted to a brief abstract of each law that has received the Royal Assent during the year, read in English and the local language.

In Kenya, the normal rule is that an Act of Parliament comes into legal effect the day it is published in the official Gazette.

The Constitution says: "The President shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette."

The Constitution of Kenya Review Act 2008 says he must "by notice in the Gazette, promulgate the new Constitution ".This suggests promulgation is something separate from publication -which must also occur. But it clearly does not require that the President sign the Constitution - which is right, as we suggested. Indeed, the heading to the section is "Proclamation of New Constitution". It is unrealistic to expect the President (or anyone) to read out the text of the whole constitution.

It would be nice if he would read a summary of it, in the Isle of Man style. Perhaps the Prime Minister could read the same summary in Kiswahili. Then the President could sign, let us call it, an Instrument of Promulgation - to be published as a gazette notice.

The underlying idea of promulgation was that people should not be bound by laws they knew nothing about. Arguably, the people of Kenya know more than most peoples about their new constitution. But they have also been grievously misled about it. It is very fitting that various bodies are planning "people's promulgations" of the document around the country. But it is important that the people continue to learn about the constitution.

Perhaps the government, like South Africa, could publish a pocket-size version of the constitution (if the Kenyan schedules are mostly omitted, the two documents would be roughly the same size). But unlike the South Africans who have not done well in continuing the constitutional education of their people, Kenya should treat the introduction of the constitution into school teaching as an aspect of implementation.

And while we are on the subject, we consider that the date of promulgation is legally correct. The "final result" mentioned in the old constitution is the result after the expiry of the time for complaints about rigging in the referendum or the resolution of complaints if filed, reading the Review Act and the Constitution together.

This is a common-sense reading, which should satisfy everyone - no thanks to the drafters who could have made sure there was no tension between the old constitution and the Act.

Jill is a law researcher and teacher while Yash Ghat is the former chairman of the Constitution of Kenya Review Commission.

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