Important as the talks between PNU and ODM are, we mustn’t forget that they represent just one step in the process of reforming the way Kenya’s governed. Our problems since the election won’t go away by shuffling a few government positions between the parties. There’s a deep rooted discontent everywhere about the way the government operates. Of which the conduct of the recent election was just the most glaring example.

Because Kenya is following – along with most of Africa – the ‘iron law of oligarchy.’ Where the political elite steadily increase their hold on power. And do less and less for the electorate. History shows that all governments tread this path unless the right checks and balances are created to limit executive power.

So that power is not concentrated into a few hands, or the will of a majority group imposed on a minority community, for example. One of the most successful ways to achieve this is through an effective constitution.

We already have one, of course. But it’s largely ineffective, because it was written by people who did not foresee the problem of ensuring fairness between different communities, or of limiting the power of the presidency. It also contains an impossible level of detail! Kenya’s proposed new constitution ran to over fifty seven thousand words.

So how might we amend it? Well, mankind has been working on the problem of preventing tyranny since the dawn of time. So we only have to read the history books and look around us to get some good ideas.

The most famous written constitution – and the oldest one still in use – is of course the US constitution, adopted in 1787. It has been spectacularly successful. It welded together a huge country consisting of people coming from many cultures and backgrounds, speaking many languages and following many faiths. And it created their prosperity. Don’t imagine that America got rich by some God given right. It could have spent the past two hundred years in fruitless warfare and strife. With a few very rich politicians lording it over everyone else. It became rich because it’s been well governed.

And it’s constitution is short and contains no detail at all! It has only 4,543 words including the signatures, and could be printed on one page in The Nation!

It’s so short because it concentrates on the key problem – limiting the power of the government and ensuring the rights of individuals and minorities. And by restricting itself to principles.

It’s not the only way to write a constitution of course. And it includes only a few ideas that were new in 1787. Most were laid down hundreds of years earlier. Like the idea of balanced forces pushing against each other to prevent tyranny, which dates back to the 2nd century BC. The idea that no one should have their rights reduced without due process of law dates back to Britain’s Magna Carta of 1215, which required the king to obey the law of the land and limited how he could change it – the start of the move towards western democracy.

The English Bill of Rights (1689) was another huge influence, providing for example trial by jury, the prohibition of ‘cruel and unusual punishments’ the freedom to elect members of Parliament without interference from the Sovereign. They’re all good ideas – and worth exploring as we work towards a constitution that deals with the unique issues that face Kenya.

And let’s start with a complete rewrite! America’s constitution was originally intended as an improvement to an existing document, but that proved so difficult that the drafters decided to propose a fundamentally new government design.

And keep it short and focused on principles. America’s constitution is effective because it doesn’t attempt to do everything. And it was adopted quickly because everyone could buy-in to the ideas it contained. While everyone can find something wrong with a detailed document.

America’s constitution allows the government no authority whatsoever outside the restrictions of the constitution. It defined the legislative branch of government, the House of Representatives and the Senate, limits the greed of of congressmen, outlines legislative procedure and their powers.

It establishes an executive presidency, procedures for selection, powers, duties and what is to happen if the president is incapacitated, dies, or resigns.

It describes the court system, including the Supreme Court and required trial by jury in all criminal cases.

It defines how central government must behave with respect to minorities and lower levels of government, as well as laying down a legal basis for freedom of movement and travel throughout the country.

It describes how the constitution can be amended. Because it must be a living document – but must not be easily changed to suit one powerful group’s interests over smaller communities. In the past two hundred years over ten thousand amendments have been proposed – but only twenty seven have succeeded. Ten of those were passed in the first few years of its existence – and they all limited the power of the government still further!

The constitution gives absolute protection to freedom of religion, freedom of speech and the press, freedom of assembly and of petition. It protects against search, arrest and the seizure of property and limits the power of the state against an accused person, including the guarantee of a rapid public trial for criminal offences. It guarantees the right to legal counsel for the accused and for the accused to know the charges against him.

The thirteenth amendment abolished slavery, the fourteenth defined citizenship, the fifteenth forbids the government from using a citizen’s race, colour, or previous status as a slave as a qualification for voting. The nineteenth extends this right to women, the twenty third limits presidents to two terms and the twenty seventh limits congressional pay raises. Don’t they all sound wonderfully familiar problems!

The American constitution is effective because executive, legislative and judicial powers are effectively separated and individual rights are protected. No individual or group can have absolute power, or hold executive, legislative and judicial powers at the same time. Amendment requires such a high degree of consensus that no one group – no mater how large or powerful – can ever limit the rights of another.

Our constitution will probably need a completely different wording. And there are other examples we can examine. But few work as well where there are different communities and groups within a country. So if America could solve that problem, so can we. And we must. If Kenya is ever to be the prosperous and great nation it’s people deserve.

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