A Good Constitution
Contents
TOC o “1-3” h z u HYPERLINK l “_Toc377207442” Requirements of a Good Constitution PAGEREF _Toc377207442 h 2
HYPERLINK l “_Toc377207443” Features of the independent constitution of Kenya PAGEREF _Toc377207443 h 3
HYPERLINK l “_Toc377207444” Bibliography PAGEREF _Toc377207444 h 5
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single or set of legal documents, those documents may be said to comprise a written constitution.
The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta). Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.
Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of institutions within those branches. For example, executive branches can be divided into a head of government, government departments/ministries, executive agencies and a civil service/bureaucracy. Most constitutions also attempt to define the relationship between individuals and the state, and to establish the broad rights of individual citizens. It is thus the most basic law of a territory from which all the other laws and rules are hierarchically derived; in some territories it is in fact called “Basic Law”.
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An uncodified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
Constitutions may also provide that their most basic principles can never be abolished, even by amendment. In case a formally valid amendment of a constitution infringes these principles protected against any amendment, it may constitute a so-called unconstitutional constitutional law.
Codified constitutions normally consist of a ceremonial preamble, which sets forth the goals of the state and the motivation for the constitution, and several articles containing the substantive provisions. The preamble, which is omitted in some constitutions, may contain a reference to God and/or to fundamental values of the state such as liberty, democracy or human rights.
Requirements of a Good ConstitutionA good constitution is one made by the people, for the people. It is people-centred. Like the new constitution of Kenya, its very first article should proclaim sovereignty of the country and its people. This is unlike the old constitution which proclaimed the sovereignty of the president. The most essential prerequisite for success of the constitution is that the people act as its custodian. It must provide people with opportunities of participation at different levels of the state, to advance the fight against corruption and against pervasive poverty. It must transcend the politics of ethnicity, manufactured by politicians and immorality of plundering the country’s resources. A good constitution must uphold the values of a democratic and caring society, based on inclusion and social justice, fundamental human rights, respect for cultural differences but united in our search for harmony and unity, and the common commitment to the worth and dignity of us all.
Features of the independent constitution of KenyaKenyan voters adopted the new constitution in a national referendum on 4 August 2010. President Mwai Kibaki’s signature formally ended a long struggle to reduce the power of the President. Kenya’s new Constitution is part of a reform package, which took place after a power-sharing deal was signed in February 2008. The deal put an end to the violence which took place after Kenya’s controversial December 2007 Presidential elections.
Under the new constitution of Kenya there will be a decentralized political system which would limit the powers of the President and there will be local counties in place of corrupt provincial governments. The constitution of Kenya changed the structure of the government by creating 47 counties. The senate will have 47 members, each member elected from the counties. The President is to continue his rule over the nation, but he will be restricted by checks and balances and the Senate will examine key appointments made by him. The Presidents and Senate will have fixed term with elections taking place after every five years.
The previous constitution allowed the concentration of powers in the hands of the President, left courts with little control over the executive, and allowed politicians to exploit the tribal differences. The demand for new constitution in Kenya was for a long time and every new political crisis in the nation only bolstered the demand. The ethnic violence in Kenya following the disputed Presidential elections of 2007 saw the killing of more than 1000 persons. In the wake of the violence it was agreed that there is a need for a new constitution to avoid any more trouble in future.
The new constitution of Kenya covers several main features. The first important feature in the new constitution is that the powers of the President are reduced according to the wishes of the Kenyan citizens. Another feature is the transfer of power to regions which ensures equitable sharing of resources between the National government and the County government through a resolution of Parliament. The new constitution also contains an advanced bill of rights that among other things recognizes socio-economic rights of the Kenyan citizens. It has also created a Judicial Service Commission in which independence of the judiciary is affirmed in article 160. Another important feature in the new constitution is the creation of an Independent National Land Commission to maintain oversight and manage all public land belonging to National and County governments and recommend policy on addressing complaints from the public, planning, and dispute resolution.
The new constitution features clauses that emphasize on representation in elective bodies to effectively meet gender equity with a constitutional requirement of at least a third of elective posts to be filled by women. The constitution also includes an advanced human rights and equality commission with powers to summon and investigate individuals involved in human rights violations be they within the government or the public. Another feature is the establishment of the freedom of media to protect media houses from penalties on expression by the state on any opinion and dissemination of news. Lastly another major inclusion in the new constitution is the recognition of Muslim Kadhi courts as legal establishments.
BibliographyClottey, Peter (). “Human Rights Official Says Kenyans Want an Accountable Government”. 15December 2009. VOA. Retrieved 1 April, 2011<http://www1.voanews.com/english/news/africa/Human-Rights-Official-Says-Kenyans-Want-an-Accountable-Government–79367812.html>
George Mousourakis. The historical and institutional context of Roman law. New York: Pearson,2003.
Ghai, Yash and Jill Cottrell Ghai. Kenyan constitution: History in the making. The challenges ofimplementation. Pambazuka, Issue 493, 5 August, 2010.
Kenyayetu.comxa.com. Judicial system of Kenya, supreme court, appeal,high court,kadhi’s, chiefjusticeand Establishment of the Judicial Service Commission. 06 November, 2010.Retrieved 30 March, 2011<http://kenyayetu.comxa.com/chapter10.html>
The New Oxford American Dictionary. (2nd ed.). Edited by Erin McKean. Oxford: OxfordUniversity Press, 2005.
