While the theme of justice is central to Kenya’s constitution, writes Yash Pal Ghai, it cannot in and of itself guarantee its own effectiveness.

In the wake of President Mwai Kibaki’s sustained, gross abuses of power while in office, Yash Pal Ghai calls for the Kenyan premier to be impeached.

The referendum result ‘puts beyond doubt the wishes of Kenyans to bring about fundamental social and political changes’, writes Yash Ghai. Although the new constitution sets both a framework and a timetable for its implementation, Ghai says it’s crucial that Kenyans are not sidetracked by talk of ‘reconciliation through further negotiations on “contentious issues”’ from elites ‘determined to sabotage reform agendas’. ‘The whole point of a referendum is to see which side has greater support, and to bring the debate to closure,’ says Ghai.

Amidst opposition to giving constitutional recognition to Kadhi's courts and Muslim law, Yash Ghai argues that there are ‘few more critical factors to building Kenya as a peaceful and united nation than the way we resolve the controversy … Denying a community its identity as expressed in its most cherished values, and which do no harm to others, is the surest way to conflict and disintegration.’

Much of Kenyan civil society wants politicians to leave the current draft of the constitution alone, fearing that they will make only those changes that benefit themselves, and that disadvantage ordinary citizens, writes Yash Ghai. As various groups put pressure on the politicians to change specific provisions, from a gender, religious or other perspective, Ghai argues that if Kenya is to get a new constitution at all, it may be worth accepting compromises on some issues.

As the Kenya Parliamentary Select Committee conducts its review of a revised draft of the country’s constitution, Yash Ghai reminds the committee that its role is to ‘resolve contentious issues’ in the document, not to determine them.

Commenting on the Harmonised Draft Constitution produced by Kenya's Committee of Experts (CoE), Yash Ghai lauds a document envisaging a more open society and considerably enhanced socio-economic conditions for Kenya's people. With little time remaining to consider and scrutinise the draft however, Kenyans must take the opportunity to comment on and shape the document before it returns to the country's parliamentarians, Ghai emphasises.

cc Drawing upon the parallels behind Cambodia’s experience of the trial of members of the brutal Khmer Rouge regime, Yash Ghai considers some of the lessons Kenya could learn in seeking justice around its post-election crisis. Following the collapse of the Khmer Rouge, the international community – primarily through the UN – played a central role in revitalising Cambodia’s economy and monitoring human rights. With corruption often entrenched and political players quick to interfere for their own benefit, Ghai discusses the inherent difficulty of ensuring the involvement of domestic legal figures without creating space for political self-interest.

cc. With the ‘Waki’ Commission of Inquiry into Post-Election Violence identifying several politically-prominent figures in Kenya, Yash Ghai argues that the Kenyan people will increasingly regard their government as illegitimate if those responsible are not effectively brought to task. Contending that some form of international arbitration is required to make up for the deficiencies of Kenya’s domestic courts, Ghai considers the recommendations of the commission and the composition of a special tribunal, arguing that these will represent a key means of developing ordinary Kenyans’ trust and restoring the country’s international reputation.

cc. Speaking at the Kenya We Want Conference (4–6 February 2009), Yash Ghai elegantly outlines his views on the historical limitations of Kenya’s constitution and the holistic service it should provide in shaping lives rooted in opportunities, representation, freedom of expression and ‘nation building’. While keen to see the development of a constitution true to these goals, Ghai highlights the inherent complexity of creating such a national document, and concludes that a constitution’s successful implementation ultimately hinges upon a country’s ability to foster popular, representative participation and a culture of genuine respect for the law.