Technocratic, Representative and Democratic Constitution-Making in Kenya

• In Event: Public Participation in Constitution Making

Abstract

Constitution-making is indisputably one of the most salient aspects of transitional processes, from war to peace or from authoritarian rule, in terms of establishing and enhancing democracy. Much less is however known about how constitution-making processes can contribute to enhancing democracy in the aftermath of violent conflict and during transitions from authoritarian rule. During the past twenty years, the conventional view in scholarly and policy circles has almost unequivocally pointed to broad based public participation in constitution-making processes as the most important and decisive factor in increasing levels of democracy post-promulgation. Recent empirical research has, however, shown that this understanding does not hold empirical scrutiny. Rather a number of other factors come into play, making public participation a necessary (at the best) but not sufficient condition. It appears that national political elites, their ability to strike deals during constitutional negotiations as well as purely technocratic constitution-making institutions – in which internal and external experts are found – matter more than what has hitherto been acknowledged. This paper aims to remedy this knowledge gap and does so by focusing on the constitution-making process in Kenya; a process where a technocratic constitution-making body, a representative constitution-making body and public participation in the process was sequenced to the benefit of getting the constitution approved.

Author

• Abrak Saati, Department of Political Science, Umeå University