Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya

31 Pages Posted: 2 May 2009 Last revised: 14 May 2009

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law

Date Written: March 1, 2008

Abstract

This paper compares and contrasts constitution making in the Democratic Republic' of the Congo and in Kenya. In doing so, it makes three primary claims. First, it shows that while there was more widespread public debate on constitutional reform in Kenya than in the Democratic Republic of Congo, in Kenya a draft Constitution was defeated in a referundum in November 2005. By contrast, in the Democratic Republic of Congo where there was much less public consultation and debate on a draft constitution, the constitution was overwhelmingly approved in a December 2005 referundum because it was seen as providing an exist to the wars in the Democratic Republic of Congo.

Second, the paper argues that these contrasting examples show that although participatory constitution making may give rise to a sense of ownership of a constitution, such participation is by no means a sine qua non to having a constitution that has efficacy on the ground. In addition, these contrasting examples suggest that constitution making without a major crisis may not produce a new constitution. Thus before Kenya's post election violence in 2008, there was no crisis that provided an impetus for a new Constitution. The same was certainly not true of the Democratic Republic of Congo.

Finally, the paper shows how participatory constitution making in an ethnically divided country like Kenya left the country more ethnically divided than in the period immediately before the referundum on the Constitution. In addition, a post crisis constitution like that of the Democratic Republic of Congo gives parties with more political power to exercise punitive justice against their opponents. By contrast, in Kenya abandoning a form of revolutionary constitutionalism such as punitive justice was crucial to laying the foundation for a peaceful exit from power by President Daniel Arap Moi in 2002.

Keywords: Kenya, Democratic Republic of Congo, Daniel Arap Moi, participatory constitution

Suggested Citation

Gathii, James Thuo, Popular Authorship and Constitution Making: Comparing and Contrasting the DRC and Kenya (March 1, 2008). William & Mary Law Review, Vol. 49, No. 4, 2008, Albany Law School Research Paper No. 09-01, Available at SSRN: https://ssrn.com/abstract=1397619

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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