Kenya and Zimbabwe /Maranga 1 ISSN 2162-­‐7819 A Contextual and Comparative Analysis of Constitutionalism and Political Culture on Elections: Kenya and Zimbabwe Kennedy Maranga, LLM, PhD*
Abstract The influence of a Constitution in an electoral system may seem obvious,
but sometimes it is not. Sometimes there are tensions between the
principles underpinning an electoral process such as the promotion of
majority rule, giving a voice for minorities, inclusiveness, the promotion of
a stable government, freedom of expression, assembly, the free press and
political culture. This paper examines the concept of constitutionalism and
political culture in Kenya and Zimbabwe as it relates to the electoral
process. Constitutions of Malawi, South Africa, Libya, Ghana, Uganda,
Tanzania, Ethiopia, France, German, U.K., U.S.A., Australia, Canada, and
Latin America have also been mentioned. The intention is not to take a
comparative analysis of the texts of the Constitution of these countries, but
to draw lessons in the development of constitutionalism as it relates to
elections. In doing so, this paper addresses legal issues involved in making
Constitutions work. This paper not only examines constitutional forms in
Kenya and Zimbabwe, but the political life in which they have been
contained. Key findings show that although a good Constitution is
important, it is not enough to create constitutionalism.
Key words: Constitutionalism; electoral process; political culture; electoral
reforms
* Lawyer and Professor in Law and Policy Correspondence: Kennedy Maranga; Email: kenmoma at yahoo.com
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Kenya and Zimbabwe /Maranga 2 A Contextual and Comparative Analysis of Constitutionalism and Political Culture on Elections: Kenya and Zimbabwe This paper is divided into four parts. Part one examines the values of constitutionalism, part two
deals with the evolution of constitutionalism, part three evaluates and discusses the values of a
constitution and finally, part four examines the influence of political culture on constitutionalism.
For purposes of this paper, the electoral process is generally defined as the events before, during,
and after elections, that necessitate democratic elections. Free and fair elections hold a special place
in a democracy and the political life of a state. In addition, the values of constitutionalism must be
present in democratic elections. In a democracy, acceptable international electoral standards are
followed. Of importance in an election, is its quality and conformity to international electoral
standards. In all major democracies, it took several years before political and judicial institutions
were firmly in place.
The question to ask is what will it take to develop the practice of constitutionalism in Kenya
and Zimbabwe. Like older political systems, these countries will have to go through struggles
before the concept is fully developed. Based on the historical experience of African countries, in
addition to limited government, pluralism and individual rights upon which the concept of
constitutionalism rests, accountability and group rights should be considered, as well.
Most recently, Kenya and Zimbabwe were involved in post election conflicts during their
transitions in the 2007 and 2008 elections respectfully. In addition, both countries have substantial
and authoritarian system (Blackwell, 1995). In an effort to limit the inherent power of arbitrariness
in governments, Constitutions are set up to provide for the roles and responsibilities of the
executive, legislature and judiciary. The idea is to make countries to comply with the primary
function of a Constitution in limiting the authority of the government and thus regulate political
institutions and processes. Like most countries, this view forms the backdrop of the correct exercise
of power in a state. In an ideal situation, mechanisms for the supervision of restraints of power are
elected upon the doctrine of separation of power, limited government and the rule of law.
It’s undoubtedly true that democracy among emerging democracies can take place faster today
as most people think. Certainly, a firm electoral process cannot be instituted overnight. Democratic
elections require democratic institutions and trust in them, before they are firm to produce credible
elections. While, institutions, laws and rules are important, it requires the joint effort of various
institutions for realization of an effective electoral process with fair outcomes. In the global context,
a state must have legislation that clearly defines the terms for and the procedure of the electoral
stages of an electoral process. Numerous world declarations and conventions including the
Declaration of the Rights of Man of 1948, the Vienna Convention on the law of treaties in 1969, and the
International Convention on Civil and Political Rights of 1966 focused on setting up electoral universal
standards.
Generally, the term constitutionalism is construed to mean limiting the powers of those in the
government. These include ideas, attitudes and patterns of behavior toward the rule of law. On the
other hand, political culture refers to the traditions of citizens, politicians and the bureaucracy
toward politics, law and other perceptions that affect democratic elections. These terms will be
used in this context throughout this paper.
A basic difficulty with exploring this concept of constitutionalism and political culture is that
they are vaguely defined, but that is not a reason not to examine them. Indeed, some of the
important characteristics of human society are not well defined or are difficult to define. Although
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Kenya and Zimbabwe /Maranga 3 difficult to define, constitutionalism and political culture shape the constitutional and
unconstitutional aspects of public policy of any given country. The concept of constitutionalism
rests on the theory of justice and process while that of political culture lies on deliberative
democracy.
As earlier noted, the concept of constitutionalism is hard to define. Moreover, it’s hard to
differentiate the relationship between the concept of constitutionalism, democracy and the
Constitution. A Constitution is an important instrument of constitutionalism. The word
“democracy” has several definitions, as well. Despite the lack of consensus among scholars on its
definition, the words of Abraham Lincoln are commonly quoted: “a government of the people by
the people for the people.” As it relates to elections, this definition implies that the electorate must
have higher stake in a democracy.
According to Hoffman (2005), a free and fair election is an important element for democracy.
The rationale is that, the election of political leaders that control how a government functions rests
on a sound electoral system. As a result, democratic elections are an important measure for
democracy. Democratic elections require a mechanism of voting that links the expression of the
electorate’s wishes with the result. Consequently, electoral outcome is an important component of
the electoral process (Elklit & Reynolds, 2005).
According to Shivji (1991), lack of adherence of the principles of constitutionalism has been a
major player contributing to undemocratic elections in Africa. Shivji (1991) argued that most
African countries after independence embedded in their Constitutions the concept of
constitutionalism. Indeed, the first Constitutions in Kenya and Zimbabwe enshrined the desire to
end absolute power. Although this concept has not been practiced fully in Kenya and Zimbabwe, it
was never part of the colonial legal and political system.
Despotism and concentration of power in the executive (Governor) characterized the colonial
era, while, justice was dispensed through administrators (District Commissioners) and legislation,
if it ever existed, it consisted of representatives of the governors. Across the African continent, both
the American style of the executive presidency, the UK Parliamentary system, the German federal
Parliamentary and French Presidential system and the African style of an imperial Presidency have
failed and symbolized authoritarianism.
Is constitutionalism therefore, the same for all countries at all times? Can it be universal? For
most African countries, human and in particular individual rights have a Western flavor (Nyerere,
1966). At the same time, constitutionalism has been resisted and perceived as cultural genocide
effective only in homogeneous societies as opposed to heterogeneous ones. Now, should the
question of constitutionalism in Kenya and Zimbabwe be approached differently?
It cannot be denied that Constitutions shape political systems and provide for the limitation of
power, setting the stage for constitutionalism. In addition, Constitutions have provided for the
rights and duties of the state and individuals. These individual rights act as a limitation of state
power.
Constitutionalism generally implies limited government. It’s this “limiting of political power
that is expressed in the concept of constitutionalism” (Nwabueze, 1973). While the Constitution
recognizes the importance and necessity of governments, the concept of constitutionalism insists on
the limitation of political power to curb arbitrariness and despotic leadership. The concept is
focused on the implementation of the rule of law, accountability, individual rights, right to
organize, right to security and democratic governance. Constitutions in Kenya and Zimbabwe
have incorporated claw-back clauses that have diminished the values of constitutionalism.
Part I: Values of Constitutionalism
The concept of constitutionalism involves the proposition that the exercise of governmental power
shall be bounded by prescribed rules and procedure. To be effective, constitutionalism requires
compliance with legislative and executive statutes that specify performance, powers and
limitations. It reduces arbitrariness and misuse of discretionary powers. As a result, good
governance emerges which is more than putting constitutional limits to the power of the
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Kenya and Zimbabwe /Maranga 4 government. Over the past years, there has been a crisis of governance in most African countries
and other emerging democracies particularly with the exercise of political power. Kenya and
Zimbabwe’s quest for good governance rests on the development of the constitutionalism for
sustainable economic, social and political development.
In a democracy, commonly accepted dimensions for a free and fair election consist of
transparency, access to justice, registration of voters and democratic judicial and legislative
institutions (Svasand & Rakner 2005). Although the Kenyan and Zimbabwean Constitutions were
liberal and provided for these dimensions, the spirit of constitutionalism was absent. In the past,
laws in Kenya and Zimbabwe were enacted to serve individual interests. As a result, the laws took
away the core values and tenets of the Constitution including free press, right to assembly, right to
form parties, freedom of speech, etc.
Kenya was governed under the 1963 Constitution as amended until 2010.1 The constitutional
review process took over two decades that were characterized with wrangling and suspicion
amongst politicians and interest groups. At independence, Kenya and Zimbabwe inherited
competitive, regulative and democratic institutions from Britain (Murunga & Nasongo, 2007).
These included a Constitution, political parties, legislature, judicial organ, pluralistic press and an
elected executive.2 However, after independence, these institutions were relentlessly abused and
undermined. Government after government, the effort of restoring constitutionalism has failed.
Accountability requires competitive elections that are fairy and neutrally administered. Indeed,
electoral administration should be free of fraud or ineptitude. These include registering voters,
publishing and distributing voter lists and registering qualifying parties and candidates,
establishing campaign rules and finance, ensuring security of campaigners including voters and
polling stations, reporting, collecting and announcing the results. This requires professional and
independent appointed administrators who cannot be manipulated.
Kenya and Zimbabwe held controversial elections in 2008 that led to a power-sharing
agreement giving the opposition a stake in executive power with Robert Mugabe’s ZANU party
and Mwai Kibaki’s PNU party. In both countries, power sharing was an effective way to restore
political stability. Although these Grand Coalition governments have been cited as a model of
negotiated settlement of disputed elections, they have numerous problems. In addition, one will
question how this power-sharing approach represents the voters will in a constitutional state.
Cultural Values
A constitution is supposed to be a power map that control and supervise constitutionality for
democratic governance. A Constitution also provides for organized power that is predictable as in
the American Constitution; a constitutive process, as in the Malawian Constitution; a code of
conduct, as in the French Constitution; a program of political and economic transformations, and as
1
That which unified the offices of the head of state and government in 1964, that which removed the
protection against redrawing of regional and district boundaries in 1964, that which reduced the percentage
required in Parliament to approve or disapprove emergencies from 65 to simple majority in 1966, that which
removed time limitations on the state of emergencies in 1966, that which required members of parliament to
defect from one party and seek fresh mandates in 1965, that which gave the president powers to nominate 12
members of Parliament in 1965, that which gave the president powers to waive penalty on members found
with an election offence in 1975, that gave Kenya one party system in 1982, that which repealed section 2(A)
limiting the presidents tenure to five years in 1992 and required the president to garner 25 percent of popular
votes from five provinces out of eight, the Constitutional of Kenya Review Act ( 1997) that paved way for
comprehensive Constitutional review process, the 2008 Constitutional Review Act and the Constitutional of
Kenya Amendment Act ( 2008) aimed at resolving electoral fraud and violence in the past and reconcile the
community.
2
Post independence Kenya provided for a Parliamentary system of government. The Prime Minster was head
of government, while, the Governor General (acting on behalf of the Queen of England) was Head of State.
The System had democratic institutions including a bicameral Parliament, multi-party democracy and a quasiFederal system of government with clear separation of power. Proportional representation was used and
continues to be used.
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Kenya and Zimbabwe /Maranga 5 in the Soviet, Libyan or Ethiopian Constitutions; an authoritative affirmation for moral, social,
cultural and economic policies for the good of society. Surprisingly, these tenets only facilitate free
and fair elections in democratic countries.
A constitutional state requires both rules of behavior and structure for the implementation of
laws. In a constitutional society, there is some kind of consensus and thus shared values to remain
cohesive. Consequently, for a state to be a constitutional state its basic tenet is the shared belief that
all citizens are equal in the eyes of the law. To this end, consensus development in society is
gradual but ultimately vital for the development of the formation of a constitutional state. For
viable constitutionalism, national unity is a condition precedent. Political culture entails shared
attitudes, values, goals and practices. Indeed, political culture may hinder or support the values of
constitutionalism and democracy.
Constitutionalism depends upon cultural values that conform to the rule of law (Franklin and
Baun (1995). Baun suggested that societal agreement is based on the sound legal and political
system of a country. Concern for constitutionalism revolves around the notion as to how people
govern themselves. In doing so, constitutionalism provide for a firm background for the
development of deliberative democracy. Such an environment paves way for the development of
democratic institutions. In the absence, democratic institutions are weak, thus, hindering the
development of a constitutional state. Kenya, Zimbabwe and most African countries are multiethnic cultural states. It is unrealistic to find societal consensus in such countries. However, values
of constitutionalism must be upheld.
Political developments in Africa have demonstrated that Constitutions have failed to regulate
the exercise of power in many countries (Shivji, 1991). Given the historical trend in African
countries, the principles of constitutionalism appear to have been rejected in these countries. In the
past, constitutional law in Kenya and Zimbabwe has been more concerned with the distribution,
exercise, creation and legitimization of power in the hands of a few individuals but less on people.
Elections are an essential element and measure for a democratic system. Okar-Lust (2006) and
Fleming (2006) suggested that democratic countries are those that conduct elections fairly. Either
way, elections are a test for democracy and constitutionalism. To ensure that elections are fair, a
Constitution should impose limitations on the power of the executive, judiciary and the legislature.
It also calls for society to put the Constitution into practice through constitutionalism. Provisions of
the Constitution require not only implementation, but respect of the Constitution. Thus, a country
may have the best Constitution, but lack constitutionalism.
Part II: Evolutionary Constitutionalism
It is difficult to explain why the United States attained universal male suffrage more than a century
before Latin American countries and other young democracies. It’s also difficult to explain why,
once created, constitutionalism persisted and consolidated in some countries such as Britain,
Sweden, and the U.S and collapsed in others, such as Argentina, the Middle East, and African
countries.
Britain, the United States, Australia and Canada are best termed as evolutionary democracies
(Baun, 1995). Although Britain is by no means the mother of modern democracy, the principle of
one person, one vote was not institutionalized there until the middle of the 19th century. Similarly,
Canada did not adopt a written Constitution until 1982. On the other hand, while, the United States
Constitution is marvelous, the original document recognized slavery and permitted states to
restrict the voting franchise to only a limited population of propertied white males for many years.
While, although Australia adopted its Constitution in 1890s modeled on the U.S and British
Constitutions, the Aboriginals were not allowed to vote until in the 1960s.
The instrumentalities of Constitution building of these countries require fitting before
adoption. For instance, the United States Voting Rights Act of 1965 is such an example, as is the
construct of the new Canadian Constitution (Canada Act of 1982) and the Constitution of the
Commonwealth of Australia Act of 1900. Although these reforms represent the second wave of
constitutional development that emerging democracies should follow as they strengthen
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Kenya and Zimbabwe /Maranga 6 democratization, they require time and caution. Most independent Constitutions have failed to
provide for machinery better suited for good governance in post-independence times (Shivji, 1991).
To Borrow or not to Borrow
In Tanzania, the first President Julius Nyerere, in a speech delivered to Parliament in 1974
stated:
We refuse to adopt the institution of other countries even where they have served those
countries well because it is our conditions that have to be served by our institutions. We
refuse to put ourselves in a straight-jacket of constitutional devices-even of our own
making. The Constitution of Tanzania must serve the people of Tanzania. We do not intend
that the people of Tanzania should serve the Constitution. (Nyerere, 1965)
Most African leaders purport to apply the African way of democracy in order to justify
dictatorship. In support, Okoth-Ogendo as cited in (Shivji, 1991) argued that understanding the
legacies of the history of African countries is important, while trying to understand their
Constitutional order. During colonial times, state administration was aimed at controlling colonies.
As a result, coercion instead of management and persuasion was used to administer these colonies.3
Consequently, state power dominated public administration. In the end, post independent
Constitutions preserved these approach and values and failed to embrace constitutionalism.
Whether the result, of the colonial rule or purposeful borrowing, contemporary nation-states
including Kenya and Zimbabwe share common institutional structures based on the European
legal and political models and so is the electoral system.
Among most African countries, the office of the President has been held to be supreme over the
Constitution. Consequently, holders of this office have argued that to be understood by the people,
this office be personalized in one individual. Provisions limiting the tenure of the President have in
the past been resisted by the executive resulting into long periods of service of President’s Moi,
Mugabe of Zimbabwe, Museveni of Uganda, Mubarak of Egypt, Gadhaffi of Libya, etc.
Another area of centralized power in Kenya and Zimbabwe was the control by the executive on
political parties. The rationale was to confer supremacy of a single political party led by the
executive. This power has been politically used as an instrument of ideology, disciplinary control,
national policy decision-making body, recruitment agent, agent of pressure groups and unions. As
a result, the electorates have been denied legislative function thus defeating the essence of
democratic principles as enshrined in the Constitution. Although constitutionalism is important, it
should balance between power and law in order to avoid weakening a government. No society has
achieved such a balance yet (Shivji, 1991), nor cultivated it fully (Nwabueze, 1973).
Role of the Constitution
Evident among most African countries is the fact that elites amend the Constitution to reserve
for themselves unfettered discretion on public affairs. In spite of existing laws, control over public
meetings, processions, security and licensing procedures of political parties has continued to erode
the values of constitutionalism in most African countries elections.
The concept of a written Constitution started in America and France after the American and
French revolutions of 1700s and then spread to other countries. The purpose was to create welldocumented checks and balances. However, in countries such as Kenya and Zimbabwe, although,
the Constitution has imposed checks, the executive has no respect for it. Instead, the Constitution
has been used to serve the interests of tribal, racial and religious groups.
In a Constitutional state, no branch of government has unlimited powers. Supremacy of the law
is understood as the supremacy of the Constitution that is compatible with the concept of
constitutionalism. The concept of constitutionalism appears to be developing much faster than
governments. This development could be because governments are a creation of the Constitution
3
Much of the post colonial Constitutions were mainly concerned with leadership styles, roles, elections and
behavior, political parties and mobilization and failed to relate these with structural institutions within which
they operated.
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Kenya and Zimbabwe /Maranga 7 that provide for the three (executive, legislature and judiciary) branches of the government with
specific powers delimiting their operations. Governments are assumed to act within these powers.
The doctrine of separation of powers is a necessary element of constitutionalism. It provides for
checks and balances of the three organs of the government. The executive provides political
direction, administration and creates room for order and security. While, the judiciary interprets
and adjudicates law and disputes respectively. The legislature, the most recent organ of the 16th
century is the law-making body. All of these organs require restraints to avoid arbitrariness.
Hence, their structure and operation is important for purposes of free and fair elections and
generally implementation of constitutionalism.
A Constitution is a legal instrument of restraint and constitutionalism. Owing to its origin in
Kenya and Zimbabwe to colonial powers; their Constitutions were greatly influenced by the British
Constitution. Both of these Constitutions were not established through a referendum. Hence, they
were not chosen by the people, but through a National Assembly. Except for Ghana, Uganda and
Tanzania whose Constitution were enacted by the Constituent Assembly, those of other British
colonies were created by a National Assembly. For instance, Kenya adopted its new Constitution
after independence from a monarchy to a Republic through a National Assembly established by a
Parliament established by the British colony. However, how a Constitution is enacted does not
make it legitimate, but rather how it commands loyalty, confidence and obedience of its people. In
addition, it must be accepted, respected and understood by the people. Constitutionalism is created
by respect of the rule of law and not necessarily these virtues.
Social Structure
The primary challenge for constitutionalism among emerging democracies is national unity.
Kenya and Zimbabwe are no exception (Wanyeki, 2010). Indeed, lack of cohesiveness has greatly
hampered the growth and development of constitutionalism in these countries. As nations, the
Kenyan and Zimbabwean people have a conscious mind of common identity, culture, language,
origin and tradition. These countries have a distinctive national character. On the other hand, there
are conflicting feelings of loyalty to tribe, race, religion and language, all of which have been
sources of disunity.
The social structure in Kenya and Zimbabwe is that of tribes, whereas in the West, the
individual is the source of unity of social relationship. In these countries, a tribe is subdivided
further to clans and family. Such consciousness has created loyalties perhaps closely associated
with electoral conflicts based on tribal political parties and their affiliates (Matthijs, 2007). Although
it’s hard to define “tribe”, language and culture are a commonly accepted distinctive factor.
According to the Human Rights Commission in Kenya and Zimbabwe, tribalism was the major
cause of the 2008 and 2009 post-election violence. Similarly, Matthijs (2007) suggested that electoral
conflicts in Africa are caused by ethnicity. Although this argument has merit, other factors: Lack of
constitutionalism and bad political culture cannot be ignored.
As democratic institutions provide for checks and balances, human behavior is to blame for
lack of constitutionalism. There can be no constitutionalism unless those who wield power observe
the limits upon governmental powers. Corruption, waste and inefficiency have undermined
constitutionalism not only in Kenya and Zimbabwe, but among most countries. The struggle for
political power and the unwillingness for those in power to hold onto it is an impediment to
democracy, but not the Constitution itself. On the other hand, judicial impartiality, whereby judges
involve themselves in politics and make biased decisions has been of great concern not only among
emerging democracies, but developed countries, as well. Over the years, the Kenyan and
Zimbabwean governments have exceeded the limits of their powers under the Constitution. Some
of these excesses have gone unnoticed, while others have been met with resistance by civil rights
groups, opposition parties and human rights groups with little success.
Most importantly, constitutionalism is usually present in nations with a fertile political culture
that builds an environment where the rule of law prevails. Such an environment is lacking in
Kenya and Zimbabwe. As these countries seek to consolidate new democratic governance in a
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Kenya and Zimbabwe /Maranga 8 strong Constitution, reforms need to address two pertinent issues; political culture and
constitutionalism.
Part III: New Constitution or Constitutionalism
The question to ponder about is the role of the Constitution and electoral laws before, during and
after elections. Is there something the Constitution would have done to avert electoral violence?
Were there mechanisms in the Constitution, if followed that would have prevented this and other
previous incidents? If yes, what should have been done?
The American and French revolutions brought the desire for new Constitutions that provided a
framework for France and the Unites States systems of governance. These revolutions expressed
universal rights and values including the right of suffrage. According to (Eva, 2006), the origin of
the existence and desire for different electoral systems and new Constitutions in the 19th and 20th
centuries could be traced to these two revolutions. For instance, in Australia, the desire for a new
constitution was when its six states decided to join in 1901, so as to regulate their relations.
As for the United States in 1789, it was when the 13 northern states wanted to join with the
southern states that the desire for a new Constitution came up. In Kenya and currently in
Zimbabwe, the desire for a new Constitution was /is to solve the electoral problems and other
social issues. While, enacting a new Constitution is important, other statutes of Parliament if
enacted and implemented will effectively regulate the conduct of elections in Africa.
Assessing a Constitution
One way of assessing how a Constitution imposes its imprint on society and the state is to
examine how it operates internally and externally. Internally, a Constitution shows how it
distributes power, the institutions it sets and the methods of accountability and enforcement it puts
in place. Externally, a Constitution can be assessed on how it operates and seeks to influence
society in its development.
Kenya and Zimbabwe’s Constitution have since independence provided for and satisfied these
criteria. In these countries, the Constitution has guided society, institutions and given people the
power to decide on how they want to be governed. While, a Constitution may set up democratic
institutions and authority, it cannot implement them.
As earlier noted, in a Constitutional state, the rule of law prevails not because the courts or
police say it should be, but because of the existence of general acceptance and confidence in the
law. Lack of respect for existing laws is prevalent in Kenya and Zimbabwe. A culture that respects
the law is fundamental for the promotion of democratic elections and control of state power, not
only in the conduct of elections, but generally in governance.
No country can claim to ensure that all members of the electorate participate equally during
elections and that its elections are totally free and fair. Elections are supposed to be a political asset
for any country. With respect to Kenya and Zimbabwe, elections have been a political liability. The
degree of political stability is a substantive test and positive feature of democracy. Indeed, political
stability provides for a peaceful transition of elections and legitimacy of such elections from
citizens.
In these countries, the challenge is the unjustified reliance on the ability and capacity of the
Constitution to influence societal behavior. As earlier mentioned, until 2010, the 1963 Kenyan
Constitution was repeatedly amended to pave the way for electoral reforms. However, most of the
amendments consolidated the authority of the executive providing for momentary state powershift demands. Given this understanding, bad political culture and lack of respect for the rule of
law have played a significant role in Kenya’s electoral process. Like most African countries and
emerging democracies, Kenya and Zimbabwe, have not been able to sustain and conduct free
democratic elections.
Kenya remained a multiparty democracy until the death of President Jomo Kenyatta in 1978.
When Moi succeeded, he initiated Constitutional changes to weaken existing checks and balances
and consolidated power. However, this was reversed in 1992. As a result, in 1997, a cross-party
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Kenya and Zimbabwe /Maranga 9 parliamentary reform initiative revised some oppressive laws inherited from the British colonial era
and others initiated thereafter that had been used to limit freedom of speech, voting and assembly.4
According to Cowen and Kanyiga (2002), the 1997 minimum electoral reform package was meant
to provide for a level playing field for competitive elections. Indeed, this reforms improved public
freedoms and contributed to generally credible national elections in December 1997.
A bad Constitution has been blamed for this electoral crisis on grounds that the president
solely appointed members of the electoral Commission with his cronies before elections, the
existence of an unaccountable electoral Commission that declared presidential results without
reliable records, enormous powers of an imperial president, centralization of power in Nairobi city,
the lack of citizen participation and empowerment, ineffective state institutions such as the
judiciary, the police, Attorney General and corruption. However, at the time, the Constitution and
other statutes in Kenya had provisions that outlawed this behavior.5 These laws have been grossly
abused from time to time.
Whereas, the texts in the Constitution are important in regulating practice and behavior, power
should be depersonalized from individuals. Holders of state offices must be subjected to the law.
Because of bad political culture, holders of state offices are held to be above the law. It is this part
of constitutionalism that has been hard to realize for decades. Consequently, public office holders
have their own aura, while the public has encouraged this capricious and biased behavior of
exercising state power to their disadvantage.
In Kenya and Zimbabwe, elements of the framework of the rule of law have been disregarded
by individuals who have acquired state power. The rationale is to safeguard themselves for
purposes of acquiring and accumulating wealth. This has been the practice of Kenyan and
Zimbabwean politicians since independence. Such political culture has rejected the values of
constitutionalism.
In 2005, during the Constitutional draft process at the ‘Bomas,’ the values of the Constitution
were disregarded and rejected even after professional experts had gathered information and
consulted Kenyans and prepared a Constitutional draft that represented the will of the people. 6 As
a result, the draft was vetoed by politicians who demonstrated lack of interest and respect for a
vibrant constitution with checks and balances.
The judiciary in Kenya and Zimbabwe is discredited and incapable of impartial adjudication of
not only electoral disputes, but other legal issues, as well. The 1992, tribal and electoral clashes in
Kenya that started in the Molo region were political in nature7 (Oloo and Mitullab 2002). Evident
4
The Constitution of Kenya Review Act (1997) was enacted that aimed at Constitutional review of the
Constitution through negotiations between the Kenya African National Union (KANU) and the opposition
under the aegis of the Inter-Party Parliamentary Group (IPPG).This act was initiated after allegations of fraud
in the 1997 elections. This Act led to the passage of minimum reforms and repealed the Detention Act, Public
Order Act, passed the Registration of Parties Act and provided for consultations for appointment of the
Electoral Commissioners form all parties. Section 2(A) was repealed again in 1997 to provide for multi-party
elections.
5
Such as the Electoral Commission Act, the Constitution of Kenya article 40, the Political Parties Act, the
Anti-Corruption Act, etc, which if followed to the letter would have lead to quality elections in a democratic
country that value the rule of law.
6
A Constitutional conference was held in 2004 to revise the Constitution and was approved by both parties.
The purpose was to reduce the powers of the president and establish an executive Prime Minster. Although
Kibaki before he became president supported the idea of constitutional reforms in 2003, he changed after he
won elections to maintain an imperial Presidency. This created division of his coalition government until after
the widely rigged 2008 elections.
7
It has been argued that fundamental Constitutional amendments prior to 1990 helped breed a culture of
impunity which was apparent during the electoral violence of 1990s. As a result public opinion by 1992 was
converging on the need to overhaul the Constitution as a remedy and to restore good governance. However,
by the wake of multi-party politics in 1991 most aspects of the flawed Constitution were still in place.
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Kenya and Zimbabwe /Maranga 10 among most African countries is a systematic culture of impunity and constant violence sanctioned
by the government and politicians.8
Kenya and Zimbabwe’s constitutional reform have been hampered by politicians, business
people and the bureaucracy since independence. The state has remained the source for the creation
and accumulation of wealth. Individuals in political control have not only sanctioned political
violence, but made politics ethnic, regardless of the existing laws and the Constitution. Politicians,
who are supposed to be sponsors of reform, are essentially leading saboteurs of the reform.
The perception of Kenyans and Zimbabweans is that, the Constitution has failed in achieving
national values. As a result, there have been numerous attempts to amend the Constitution and
overhaul it in an effort to solve the social, economic and political challenges facing the country. For
example, between 1963 and 2008, the post-independent Kenyan Constitution was amended 32
times for a period of 40 years (Amadi, 2009). In contrast, the United States has only amended its
Constitution 27 times for over 235 years, yet, the U.S is deemed to be one of the most democratic
countries among others in the world (John, 1999). Respect for the rule of law along with an
established political culture exists. Also, constitutionalism in the U.S derives its power from the
principles of law and the people, while, that of Kenya and Zimbabwe derives its power and
principles from the executive and those in state power.
The Kenyan and Zimbabwean Constitution have established governmental agencies and
described procedures and powers, but as usual left general modes of operation to other statutes.
Despite such mechanism, those in power and the bureaucrats have misused institutions in total
disregard of the law, for selfish political and economic interests. Most importantly, there has been a
lack of commitment to indict those who break the law and consequently lack of trust from citizens.9
A Constitution’s operations can be assessed through its influence on society and development.
It cannot be denied that a Constitution does not provide directions to society in national
development. Indeed, a constitution sets out guidelines on how power is exercised and the
responsibilities of the state. But, society has a role to play, sometimes even to an extent of pushing
policymakers and those in power to uphold its principles. In both Kenya and Zimbabwe, the
perception is that the Constitution can by itself influence society. Indeed, it is a society that largely
determines to what extent the Constitution can be disregarded, manipulated or observed.
Despite amendments, the Kenyan Constitution failed to address sound social and political
policies, create controls, sense of accountability and responsibility for fair-play and honesty. It is
the political behavior that organizes political violence and influences malpractices through bribery,
inhibits freedom of the press and disregard for existing laws that provide for democratic
governance. The argument that a Constitution designs and structures a country should not be
disregarded per se. Of course, a Constitution may structure state institutions, but may fail to infuse
these institutions with values and principles. However, Constitutions say very little about the
values on the administration of a country.
The implication of this is that electoral or constitutional reform must go beyond the
Constitution in itself. Having a wonderful Constitution is one thing, while making it a living
8
The victory of KANU Party led by Moi in 1992 meant that it was to set the pace for legal change, yet, it had
opposed any meaningful Constitutional reforms before. As a result, many problems in Kenya’s democracy
and electoral processes after this (1992) were identical to previous processes of 1990s advocating for lack of
competitive elections.
9
The Goldenberg case and other corruption cases have been going on for the last three decades. This cases
involved massive allegations of fraud of approximately Ksh 14 Billion. Initially, those involved were in state
power and have been protected by every regime since 1990s. Most recently in 2011, the Ocampo six-ICC
(2007 electoral violence suspects) as they are referred have been the subject of political concern. The Kibaki
administration and its alliances are trying to shield them for political gain from trial in the ICC, while the
ODM party a coalition partner is opposed, a reflection of the existing bad political culture despite the
enactment of the 2010 constitution attempting to maintain the status quo-impunity.
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Kenya and Zimbabwe /Maranga 11 vibrant document is another. A vibrant document is one that has a positive effect on society, to
improve the lives of its people. It is not the provisions of the Constitution that are in totality
important, although they are, but a culture of respect for the law, adherence to court rulings and
other judicial and non-judicial bodies authorized to interpret and apply the law, thus giving value
to judicial decisions, accepting the limits of the government, respect for individual and collective
human rights and empowering people. Constitutionalism is all about these limitations of the
government.
That is not to say that a new Constitution cannot do much in Kenya and Zimbabwe per se. In
particular, it should address the immediate needs of the country and people on matters of
cohesiveness and obedience of the law. For instance, in South Africa, its 273 Sections Constitution
wanted to give constitutional protection to those in need targeting immediate social, political and
economic problems of the time. For some reason, in Kenya and Zimbabwe, the political system has
always emphasized on giving the executive and those in power a leeway on matters of law. As the
Kenyan and Zimbabwean constitutional history developed, it gave more emphasis on the role of
parliament, the judiciary and the executive than the people and the rule of law.
Choice of Electoral System
In structuring a government, a country may find the choice of an electoral system one of the
most important democratic issues to consider. Indeed, democratic governments have well
established electoral systems. This makes them responsive and accountable. The future of
democracy, among emerging democracies such as Kenya and Zimbabwe lies on the efficiency of
the electoral process. The question that arises is whether it’s simply enough to have an electoral
system or one that is better than another for purposes of democratic governance. Various
democratic theories and practices have attempted to address the issue of choice of an electoral
system without much success (Vincent, 2006). Currently, no scholarly consensus exists as to which
electoral system is better. However, there is consensus that sound electoral rules have a strong
influence in an election’s outcome.
Every country claims to extend the franchise to all its citizens, yet all has been conditional.
During the 19th century, Aristotle proposed universal citizenship to all people, yet, he did not count
women and slaves and so are certain groups in society today. As for Australia, the Aboriginals did
not vote in federal elections until 1962, while; in Britain, only men with properties were allowed to
vote until after the1932 Voting Act.
In the United States, although the right to vote Act was passed in 1860s, it was until after the
1960s civil rights movement that Blacks were allowed to vote. Several developing countries
including Kenya and Zimbabwe have made a deliberate attempt to prevent individuals or groups
from voting at polling stations. This not only denies voters the right to vote, but creates
imperfections in the electoral process and defeats the essence of democracy and constitutionalism.
The question that remains to be answered is whether a bad Constitution contributed to the flawed
elections in Kenya and Zimbabwe.
Part IV: Political Culture or a Bad Constitution
It is not contentious that democratic institutions are built only on good conditions. Such an
environment is one where there is the willingness on the part of the citizens to obey the law
without coercion. A Constitution is an important legal document that merely sets out a set of laws.
However marvelous it can be, there is more to it. A Constitution does not govern by itself. It is true
that a Constitution carries basic principles of law that relate to a nations political arrangement
including governance patterns, but to achieve it’s intended goal, it requires political will and
commitment to the rule of law.
The level of a Constitutions contribution to social welfare can be a criterion for judging whether
constitutional order is good or bad. But, where a country lacks social homogeneity as in Kenya and
Zimbabwe, even the presence of a Constitution with governance system, values and principles such
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Kenya and Zimbabwe /Maranga 12 as equity, justice, peace and tranquility without adequate management is of no value and will not
do much.
Certainly, the attainment of these principles and values contribute to fair electoral practices. In
Kenya and Zimbabwe, the rule of law does not prevail, but rather the police and courts are used for
political control. A constitutional state believes in equality before the law. It does not provide for a
group of individuals who are above the law. Such a constitutional state is also built on consensus.
Lack of political consensus leads to intolerance and mistrust which is central to political culture.
Indeed, a society of consensus is one that agrees to disagree (Franklin & Baun (1995).
The biggest obstacle in the development of Kenya and Zimbabwe’s constitutional and electoral
reforms is the lack of consensus.10 The difficulty of achieving consensus has rendered the prospects
for constitutionalism less bright even in the face of growing support for the concept itself in these
countries. The issues of race, culture, class, and political dominance have always been delicately
balanced in Kenya and Zimbabwe owing to their multicultural and ethnic nature. Nevertheless,
these countries political institutions have greatly dealt with the problems of ethnic diversity and
multiculturalism about as well as any other country.
It’s unrealistic to assume that in a multi-ethnic culture as in Kenya, Zimbabwe and other
African countries, it is easy to find consensus. Certainly, in such an environment, disagreements
based on class, ethnicity, religion or ideologies arise. However, a society of consensus must
embrace trust and tolerance and agree to disagree for the development of a constitutional state.
The political culture in Kenya and Zimbabwe and most African countries is one that displays
lack of readiness for democracy and in particular democratic elections. These political culture
values corruption or handouts, lacks consensus, disrespects the law and tolerance.
Conclusion
A good Constitution plays a significant role in an electoral system. However, there has been overreliance on its influence in Kenya and Zimbabwe. Constitutionalism requires deep commitment. By
itself, constitutionalism cannot do anything in society. It requires to be acted upon through
implementation of its principles, values and aspirations. For a constitution to have an impact,
however good, it must be a living document. The electoral system in most African countries has
fallen short of expectations of a democratic process due to noncompliance of the rule of law, weak
institutions, lack of the practice of constitutionalism and bad political culture.
The ability of the Constitution to influence social behavior in an election is not justified. To
promote constitutionalism, a sound political culture is essential. Future research on what it takes to
develop constitutionalism and good political culture not only in Kenya and Zimbabwe, but Africa,
will add knowledge to the existing literature. Although, much has been written about democratic
elections, there is little research on the impact of political culture and constitutionalism. This area of
research has inconsistent investigation.
10
Disagreements over the implementation of the Constitution of Kenya Review Amendment Act of 1997 led
to the formation of a parallel Constitution Review Initiative (Ufungamano led by religious groups) in 1997.
As a result, several Constitutional drafts emerged: the Bomas draft led by professionals and the Wako draft
and the Kilifi draft in the run up to the 2007 elections thus delaying the efforts of the Constitutional review
process.
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