Constitutions, Referenda and Sovereignty

I have never been one for long blog posts, so this is perhaps one of the few exceptions.
Looking at the stages that the European 'Constitution' has gone through, I can only smile as I compare it to our situation in the region!

Requiring the unanimous ratification by all member states, that Constitution was rejected by the Dutch and the French in 2005, putting the whole project on hold, and halting any further referenda!

Fast forward two years later to 2007, and with the Treaty having been rewritten, the Lisbon Treaty (also known as the Reform Treaty) was passed.

Here's the thing:

In contrast to the European Constitution, which would have replaced the two main treaties of the European Union and combined them into one single treaty, the Reform Treaty will simply amend them.
Wikipedia

Sound familiar?

Well if we come back to Kenya, in 2005, the Kenyan court was also faced with a dilemma! Could the Kenyan constitution be 'replaced' by way of simple amendment, or was a more comprehensive procedure required.

The question was answered when Justice Ringera (as he then was), in the landmark case of Njoya v A-G, said the following:

The second element in the exercise of a people’s constituent power is the mechanism for the ratification of the Constitution made by the constituent assembly. Whether it be called a referendum or a plebiscite, that facility is a fundamental right of the people in exercise of their constituent power.
Having found above that the constituent power is a juridical constitutional concept, I am impelled to the conclusion that the Applicants together with other Kenyans have a Constitutional right to a referendum on the proposed Constitution. Indeed if the process of constitutional review is to be truly people driven, ‘Wanjiku’ (the mythical common person) must give her seal of approval, her very imprimatur to the Proposed Constitution... The exercise of the constituent power requires nothing less than a compulsory referendum.

Rationale: There could be no wholesale 'replacement' of a constitution by way of multiple amendments. A referendum was required!

And so the words 'chungwa' and 'banana' took on a comical national prominence, fruit vendors made a small fortune selling oranges and bananas, and the Kibaki government was dealt what was arguably the biggest blow of its administration (whether the blow was fatal shall be seen sometime in late December this year).

Coming back to the European Constitution, having chosen to walk down the path that Justices Ringera, Kubo and Kasango forbade this country to walk, the Europeans have done away with the need for a referendum, and chosen to sneak their Constitution in through the back door.

It was agreed to drop most of the state-like features such as the name "constitution", as well as reference to EU symbols (flag, anthem, motto). However all the symbols are already in use, the flag having been adopted in the 1980s, and the Constitution would have just given them a more formal status. So despite being dropped from the text, use will continue: indeed the Parliament, in response to the dropping of the symbols, announced it would make greater use of them. In line with eliminating all "state-like" terminology and symbols, new names for various types of EU legislation have been dropped, in particular the proposal to rename EU regulations and directives to be EU "laws"
Wikipedia

An elaborate ruse, no doubt, but it hasn't fooled many. Not only has the former French president Valéry Giscard d'Estaing clearly stated that this new Treaty is in fact a Constitution., but the Conservative Party leader in England is already calling for a referendum.

M. Giscard d'Estaing said references to the constitution had been removed "above all to head off any threat of referenda by avoiding any form of constitutional vocabulary".

The man who chaired the body which drafted the original EU constitution has now confessed that its revived version, the so-called Reform Treaty, was deliberately drafted to try to avoid the people of Europe having their say on it.

Cranmer quotes Hillary Benn when he says:

Members of Parliament are lent the powers of their constituents and they have to return those powers undiminished at the end. It is not for Members of Parliament to give away the powers that were lent to them, because they don’t belong to Members of Parliament but to the electorate.”

That quote carries with it a tinge of sadness as I remember my law school days, and Rodney Brazier expounding what, at the time, was an already fading principle - the supremacy of parliament - to our eager young minds.

Cranmer in his post 'the rise of European consciousness' notes:

The deal is done, a country called Europe is born, its Emperor will emerge, and the whole outcome is teleologically foreordained.

While politicians, journalists, bloggers and commentators all focus on the political process, the European Union is a metaphysical construct with a spiritual dimension and intends to ‘assert’ its identity by the imposition through education and the communication of a ‘European identity’. The last piece of the jigsaw, the ‘Lisbon Treaty’, has now been put into place, and will be formally signed by the EU’s 27 heads of state in December. And by so doing they will establish a country called Europe, and abdicate their own premierships.

Clearly commentators in Europe are beginning to grasp what we in Kenya have so far failed to do.

You will no doubt remember the famous Arusha case where the Kibaki government was dealt yet another blow when the East African Court of Justice quashed rules earlier established (in 2001) by the National Assembly of Kenya, when it said:

It cannot be lawful for a State that with others voluntarily enters into a Treaty, by which rights and obligations are vested, not only on the State parties but also on their people, to plead that it is unable to perform its obligations because its laws do not permit it to do so.

The National Assembly...was bound to make rules that conform to the primary purpose of the Article that conferred that power.

The evidence before us leads us to only one conclusion, namely that the National Assembly of Kenya did not undertake or carry out an election within the meaning of Article 50 of the Treaty

The court clearly overruled the Kenyan National Assembly, and it did so on the basis of a Treaty whose constitutional implications were never put before, or ratified by the Kenyan people by way of referendum:


In a surreal reversal of roles, the political block that had earlier argued for the subjugation of the Constitution to 'the constituent power of the people' now argued for the 'supremacy of the Kenyan Constitution above the East African Treaty, and those who had earlier argued that parliament could replace the Constitution wholesale, now argued successfully that the Executive and the National Assembly were subject to the East African Treaty.

Strange!
And so perhaps we are already down the path to an East African nation. Perhaps the dice has already been cast, and we are only slow to open our eyes to the present reality.

Perhaps the East African Constitution and East African Nation are not as far away from us as we may think?
Don't take my word for it - just ask Cranmer!
But surely we would need a referendum for that, you might be thinking?

Which raises the question - what choice will be made by the next administration with regard to the 'Constitutional Question'.

Will a future Kenyan government ever again take the risk of humiliation at a referendum, or simply adopt the European model and bring in a new Constitution via the back door - perhaps under the guise of 'minimum reforms'?