Constitution-Making Dispute Resolution Mechanisms: Lessons from Kenya

John Mukuna

doi:10.5901/mjss.2014.v5n23p727

Abstract

This article examines the Constitution-making dispute mechanism in relation to the making of the 2010 of Kenya. What forcefully triggered the process of constitution-making was the 2007-2008 post-election violence which was brought to an end by the efforts of the Kofi-Annan dialogue and reconciliation initiatives. Of the several issues which required urgent attention so as to restore peace and order, the central item was the commencement of constitutional reforms which had stalled in the past. While the relevant statutory infrastructure in form of the Constitution of Kenya Review Act 2008 was established, the Act failed to address the manner in which disputes arising from the process of constitution-making would be settled in spite that at the time, the judiciary was generally an appendage of the executive. Later, an amendment to the Constitution was made which established the ad hoc Interim Independent Constitution Dispute Resolution Court (IICDRC). Notwithstanding the political climate then prevailing, there was no haste in the operationalization of the Court. After the Court commenced its work, it made some decisions which this paper considers a grave misdirection of the law thus denying itself an opportunity to fully determine the legitimacy of the draft constitution and thereby the 2010 Constitution of Kenya. The paper recommends that dispute settlement mechanisms and related matters should be fully integrated in constitution-making or reform enterprise. DOI: 10.5901/mjss.2014.v5n23p727

Highlights

The road towards the 2010 Constitution of Kenya was a strenuous and painful one as evidenced by the unfettered violation of human rights of those involved in the struggle (Mutunga, 1999; Throup & Harnsby, 1998; Wanyande, Omosa & Ludeki (2007; Mejia, 1995; Murunga & Nasong’o, 2006)
We argue that the judiciary could not be trusted with the enormous task of settling disputes arising from the constitution-making process because it was tormented by myriad challenges for instance corruption (Kwach Report, 1998; Ringera Report, 2003; International Commission of Jurists, 2005); executive control (Mutua, 2001) and a restrictive and legalistic interpretation of legislation which is a great impediment to the development of the law (M’Inoti, 2003; Hoexter, 2004)
The applicants approached the High Court for alleged contravention of their fundamental rights and freedoms enshrined in sections 70, 72, 75 and 78 of the Constitution. Their main contention was that the Committee of Experts (CoE) was in no position to determine for Kenyans what amounted to matters contentious or not contentious based on the Wako and Bomas Draft Constitutions

Summary

Introduction

The road towards the 2010 Constitution of Kenya was a strenuous and painful one as evidenced by the unfettered violation of human rights of those involved in the struggle (Mutunga, 1999; Throup & Harnsby, 1998; Wanyande, Omosa & Ludeki (2007; Mejia, 1995; Murunga & Nasong’o, 2006). It soon became clear that the Kenyan judiciary had major weaknesses which dented its image and credibility as an independent arbiter This reality led to a hasty process of amending the Constitution to create the Interim Independent Constitutional Dispute Resolution Court (IICDRC). Supremacy of the constitution and a contemporary view of the rule of law We attribute this outcome to the absence of diligence in establishing the court and generally in not according substantial weight and regard to dispute resolution mechanism as key in constitution-making initiatives. Instead of the courts being the bulwark against violation of human rights, they generally appeared to ignore basic constitutional guarantees of rights and freedoms (Kuria & Vazquez, 1993) These factors significantly contributed to loss of trust in the judiciary as a forum for constitution-making dispute resolution

Constitution-Making Dispute Resolution Mechanism

IICDRC Decisions: A Mixed Bag

Conclusion