I am currently on a short field research trip to Kenya, where I am studying the process of political negotiations that led up to the new (2010) Constitution.
One senior Kenyan politician shared a fascinating insight into where, in his view, the country went wrong: “In 1963, we wanted independence. We didn’t think about building institutions of good governance. We just thought independence was the main thing, and we’d worry about all that constitutional business later. So we became independent, and the KANU party took office, closed down the democratic space and centralised power until we had become a one-party dictatorship.”
The obvious moral of this story (which, incidentally, the Scottish Government would do well to heed) is that if you don’t want to become a failed state, and if you do want to reap the benefits of independence, it’s no good just to throw off external rule; you also have to build consensus, in advance, around robust institutions of democracy. The same goes for countries emerging from dictatorship or military rule. It’s not enough to send the dictator packing or get the generals out of politics; you also have to build something better in its place – a stable, workable, effective, legitimate democratic constitutional order.
And that is what Kenya, to a point, has now done. There is still a lot of corruption, abuse of power, inefficiency, and lack of state capacity. There are problems of implementation. But Kenya has – after many years of hard negotiations and bitter political struggles – arrived at a workable constitutional settlement that gives people the powers they need to build a better future for themselves. It is a free state in an open society. People do not live in fear. Public discussion and engagement flourishes.
On the streets of Nairobi’s Central Business District I saw a ‘People’s Parliament’, a semi-formal gathering of people on the street corner to discuss the political issues of the day.
[A ‘People’s Parliament’ in Nairobi]
This, it suddenly seemed to me, is what it’s all about. I know it might look like my job is all about burning taxpayers’ money in expensive foreign hotels and occasionally writing obscure publications about constitutional stuff that hardly anyone would want to read. But what I’m really trying to do here is to encourage and equip people (whether they are government ministers, parliamentarians, judges, civil society activists, or ordinary citizens) to think about their constitutional options and to make sensible and informed constitutional choices (in both process and substance) that will help bring stability, peace, inclusion, effective government, responsibility, accountability, justice, and all those good things that actually, really, matter.
Constitution-building is not an obvious way of improving people’s lives. It’s not like the things to which many are called: teaching, feeding the hungry, healing the sick, stewarding the environment. It’s not always clear how, exactly, a good constitution helps with the bread and butter issues of life.
But – although the timescales are long, the successes relatively few, and the results very indirect – constitutions are foundational to the realisation of the common good. Done right, a good constitution can help to create the political and social conditions in which human beings can flourish. It provides rules for decision-making and sets up processes that encourage the government to do, over time, a reasonable job of representing and responding to public needs. So, for example, the constitution doesn’t build the school, but it does put in place the legal and political infrastructure that means the money will be put into a public good, like education, and not just squandered on arms or siphoned into the private bank accounts of Ministers. On the other hand, the lack of a legitimate and democratic constitutional order can lead to civil wars, dictatorships, coups, corruption, disappearences, torture chambers, fear, misery and poverty.
So my work is ultimately about more democracy, less oligarchy. More accountability, less corruption. More justice, less torture. More peace, less war. More co-operation, less conflict. It’s an unusual calling, but it is the calling I have; it’s the point at which, for me, passion, mission, vocation and profession coincide.
The more I am able to remind myself of that (and it is sometimes easy to forget it, when I have to drag myself out of bed on a cold Monday morning, or hurry to finish something on a hot Friday afternoon) the easier it is to keep going, even amidst the uncertainty of a world where freedom, democracy and justice seem increasingly under threat from challenges like the counter-terrorism agenda and corporate power. Seeing constitution building as a calling on my life and as a purpose to which I am passionately committed gives me a sense of joy and hope in my work, even when it seems that there is such a discouraging distance between the often rather abstract and intangible work I do at my desk and the outcome achieved in the real world.