Constitution making from the Middle: Civil Society and Transition Politics in Kenya, 1992 – 1997, a book by Dr. Willy Mutunga was first published in 1999. Dr. Willy Mutunga is the former Chief Justice and President of the Supreme Court of Kenya. The book was re – launched in 2020 during the celebrations to mark the 10th Anniversary of the Constitution of Kenya, 2010.
We publish in this issue the key note address titled, Do Constitution Matter, by Prof Issa Shivji during the re-launch and the reflections on Shivji’s address by the author.
Attached Prof. Issah Shivji’s Speech (Pdf)
Reflections on Issa Shivji’s “Do Constitutions Matter? The dilemma of a radical lawyer”
By Dr. Willy Mutunga
The two questions posed by the keynote address that I want to comment on are: Do Constitutions Matter? Why do we need constitutions?
I want to briefly answer these two questions and relate them to the 2010 Kenya Constitution. Although the keynote directly addresses radical lawyers I believe this think piece relates directly to other disciplines. It is in discussing the “dilemma of a radical lawyer” in dealing with the limits of “bourgeois law and constitutions” that Issa is very illuminating. Lawyers who are engaged in Public Interest Litigation (PIL) and those working with social justice centres will find great pointers on how to rescue the limitations of bourgeois law and constitutions and engage in social reforms which Issa notes “is the path towards fundamental transformation.” Issa has been on this path since 1972 when he published “Introduction: From the Analysis of Forms to the Exposition of Substance-the Tasks of a Lawyer Intellectual” in Eastern Africa Law Review, 1972, 5 (5), 1.
Before I do that I wish to refer to two works, one by Issa and another by Samir Amin (both renown creative African Marxists) that are relevant to the theme of Issa’s keynote speech. Issa’s is the “Practice teaches paradigm: Reflections on radical and liberal law perspectives,” in Eds; Adelman& Paliwala, The Limits of Law and Development: Neoliberalism, Governance and Social Justice (London: Routledge, 2020), chapter 6, pages 109-124. Issa narrates how he and his fellow commissioners were educated by ordinary people in the following words: “It was only the practice of interacting with the working people and listening to them patiently- peasants, pastoralists, small producers etc.-through the Commission’s work that drove home the point that law is the most sophisticated of bourgeois inventions that combines in it the blind faith of religion, the popular legitimacy of mythology and the rhetorical power of Socratic persuasion to disguise the rapaciously unequal and unjust capitalist system.” (page 119).
Samir Amin’s is his book, The World We Wish to See: Revolutionary Objectives in the Twenty-First Century (New York: Monthly Review Press, 2008). At page 17 Amin writes “The ‘great revolutions’ are distinguished by the fact that they project themselves far in front of the present, towards the future, in opposition to others (the ‘ordinary revolutions’) which are content to respond to the necessity for transformation that are on the agenda of the moment.”
Let me here flag the argument that we can debate, historicize, and problematize, and that is the viability of ‘ordinary revolutions’ as a basis or to use Issa’s word “path” to the ‘great revolutions.” As I show below it depends on the vanguard political party that will undertake the task. Transformative constitutions, however, progressive will never be implemented by our comprador bourgeoisie in our Global South.
Issa states that “Constitutions rarely herald fundamental transformations. They are the product of major transformations to consolidate the new status quo.” There is also the other side of the coin: If they consolidate the new status quo through concessions and mitigations of the evils of the status quo (as history records this does happen) this is also a great political opportunity to use these concessions subversively as a basis of movement towards ‘great revolution.” I have always found Rosa Luxemburg brilliant essay, “Reform or Revolution” in Ed; Helen Scott, The Essential Rosa Luxemburg (Chicago: Haymarket books, 2008), 41-104, insightful in this regard.
Of course, one has to contextualize and historicize this essay and the issue of a vanguard political party that is committed to the ‘great revolution.’ We need to research into this issue from countries that have transformative constitutions, India, South Africa, Columbia, Ecuador, among others. Closer to home in Kenya we are prioritizing this issue. As we struggle for alternative political leadership to the comprador bourgeoisie we are searching for what Samir Amin calls “national, popular and democratic” leadership. Samir Amin, October 1917 A Revolution: A Century Later (Daraja Press, 2019), 83-106, at 102.
In Issa’s article “Practice teaches paradigm” he narrates the essence of the recommendations of the Commission he chaired (the Presidential Commission of Enquiry into Land Matters). “Our recommendations had a limited aim: to bring the terrain of social struggles closer home to the working people in their villages and neighbourhoods in the hope that they would become the ‘schools of conscientization’ as Paolo Freire would have it.” (page 120). He adds, “Even if our recommendations were accepted, it would not mean an end of class struggle, nor of the capitalist system of production. However, by demystifying issues around neutrality, impartiality and equality before the law they [people] would locate law and democracy as part of the central terrain of struggle.” (pages 120-121). Recall Issa locates law in economics, politics, and ideology, and class struggles.
Relating these reflections to the 2010 Constitution, and in attempting to answer the two burning questions above, we can observe the following:
Constitutions have been about economic, social, cultural, political and ideological struggles for the equitable distribution of political power, land and national resources. Engaged in this struggle are internal and external forces that stand for the monopoly of property, power, profits and societal inequalities on one hand; and those forces that envision a society that is egalitarian and equitable, free, just, peaceful, ecologically safe, non-militaristic, and prosperous on the other. Thus constitutions reflect class interests and their struggles spearheaded by opposing political leaderships.
In between these long-term struggles, Constitutions are also about cease-fires that call for concessions from the former group to the latter. The former forces give these concessions to guarantee their further lease on political life while the latter forces see the concessions as a great political opportunity to use them to build a better society. So, constitution-making itself is part of these struggles where the clarion call is the supremacy of the people, voiced by both contending sides. So are the struggles about the implementation of the promulgated constitution.
In my opinion, in all these struggles in the trajectory of law-making (in the colonial era) the constitution-making, promulgation and implementation (in the sunset of colonial era and in the post-colonial era) political leaderships (be they national or colonial-imperial) play a fundamental part. The ruling classes always face their nemesis, the alternative political leaderships in these struggles.
The 2010 Constitution has this history as its background. It’s vision is about changing the status quo that Kenyans found unacceptable and unsustainable. It is very strong on the supremacy and sovereign of the people and their participation in all societal issues. It seeks to heal the ills of imperial presidency, corrupt leadership, unaccountable and opaque institutions (judiciary, commissions, security, finance). It seeks to mitigate the harshness of the land question (the abolition of freehold and granting 99 years leases to foreign individuals and corporations while creating a parallel land law regime of un-commodified community land). It has a progressive Bill of Rights that decrees the whole gamut of human rights. It decrees integrity in leadership. Devolution is one of its core pillars for transformation envisions to facilitate equitable distribution of political power and resources. The 2010 Constitution seeks to organize politics away from politics of division and decrees free, fair, peaceful, credible, verifiable, and acceptable elections. It seeks to institutionalize politics as well as funding some, and not limiting them to only the liberal ideology and build integrity in political and public leadership. Finally, all this is not exhaustive, the Constitution has provisions that address sovereign debt to address the history of corruption, wastage, and theft of public resources and onerous borrowings.
We can see why we are locked in struggle during the last 10 years of its implementation. This struggle will continue until we get a leadership that will implement the 2010 Constitution and signal a debate for rescuing its weaknesses while consolidating its strengths. That is why the 2010 Constitution matters. It is the one that allows us to organize and mobilize in the sites Issa articulates. It is the one that has given us robust Public Interest Litigation (PIL) so that we can protect its gains. It is because of it that we are making the clarion call for the contestation of political power to implement it and be the ones trusted in changing it with the participation of the people. It matters because it the one that is the basis of the struggles by women for the two-thirds gender rule decreed by it. It matters because devolution has captured the imagination of Kenyans on the equitable distribution of land and national resources. It also addresses what Issa calls “commons…and public goods” which signals a human rights and social justice state that mitigates the harshness of the capitalist system that puts property, power, and profits before the people.
Constitutions could be ‘ordinary revolutions’ that Amin writes about. The question is whether subversive implementation of the Constitution by a political leadership (one that builds on its strengths and rescues its weaknesses) that is not comprador can lay a basis for a discussion of a better society. I believe this is a fundamentally political question of what kind of a ruling class (in terms of its intellectualism, ideology, and politics) can implement the constitution. Clearly the comprador bourgeoisie cannot and our Kenyan case is now abundantly clear they actually subvert its implementation. So, what kind of political class will implement the constitution? The kind Amin calls “national, popular and democratic?” I believe this issue has become a burning question in our Motherland. It is important we are discussing this critical issue going forward with our struggles.
If we wanted to get brilliant examples of who organic intellectuals are then the two think pieces by Issa give you some of the key ingredients. He talks of a radical lawyer as the predecessor of a revolutionary lawyer/intellectual and this will be achieved in the various sites of the working classes he gives as examples. You can also read Issa’s Revolutionary intellectuals (Link) on a comprehensive discussion on this topic of intellectuals.
We have in the keynote a delineated path for transformation for public intellectuals who want to become radical and revolutionary.
It is important to bear in mind that this discussion is happening when there are debates the world over about the paradigm(s) that would liberate our planet so that it becomes just, free, peaceful, non-militaristic, ecologically safe, equitable and egalitarian, prosperous, and socialist. We have learnt great lessons from failures of capitalism, the strengths and weaknesses as practiced in socialist nations. We are in a great position to seek the liberation paradigm (s) undogmatically. In Africa we have our own revolutionary intellectuals (particularly creative Marxists) who we must read and debate them. It is for similar reasons Issa also calls for the resurrection of radical PanAfricanism in his “Reimagining PanAfricanism: Distinguished Mwalimu Lectures, 2009-2013 (Dar es Salaam: Mkuki na Nyota, 2015), 1.
I want to end by suggesting another revolutionary intellectual in East Africa (who I line up with Issa and Amin) who you should read. He is Professor Karim F Hirji. He has written a book Under-Education in Africa: From colonialism to neoliberalism (Daraja Press, 2019) that I recommend very strongly to those comrades who are engaged in working around education as a public good.
Nairobi
September 18, 2020
