Nairobi — On a recent three hour trip, I read the draft constitution from one end to the other. Many of the provisions of the draft I found striking if also problematic. I am troubled by the sheer length of the document, 168 pages and over 300 articles, most with extensive sub-articles.

If, as I would contend, the goal of a constitution is to enshrine key terms under which people agree to live together as one polity, how can anyone internalise so many provisions in interacting with one's neighbour or one's fellow political leaders?

It would seem that this constitution, like many contemporary ones, incorporates not only governing principles but also numerous policies. One consequence of excessively blurring the distinction between governing principles and operating policies--granting the absence of a sharp distinction between the two--is that important questions of constitutional principle seem to be glossed over in the draft. Here are some examples:

1. Chapter 1 enshrines both the "sovereignty of the people" and the "supremacy of the Constitution". It may seem obvious, but which is superior to which? Article 1(3) says "authority under this constitution is delegated to" Parliament, executive structures at national and subnational levels, judiciaries, commissions, and "other state offices".

Shouldn't the document say that, as the authors (or at least the ratifiers) of this constitution, the people through this constitution delegate authority to these bodies? In a similar vein, Article 4(1) says "Kenya is a sovereign Republic." Misappropriation of the term in places like the Congo notwithstanding, isn't Kenya to be a democratic republic?

2. The draft contains a wonderful array of guaranteed rights. But where do they come from? Article 28(3a) says these rights belong to individuals, and are not granted by the state. But what is the source of these rights.

Higher law

The late Edward S. Corwin, a great American constitutional scholar, once wrote about the "higher law" background of the US constitution, i.e., essential Judeo-Christian philosophy dating to ancient Rome and earlier. That's fine for us, but it would seem to be more than a little tricky in a country like Kenya whose cultural heritages are many and diverse.

Article 34 says freedom from torture, slavery, the right to a fair trial and habeas corpus shall not be limited "despite anything else in this Constitution". No argument about any of that, certainly. But by implication, have these rights been elevated above all others? Are some rights really more important than others?

3. Speaking of first principles, the related principles of freedom of religion and the neutrality of the state toward religion have caused the courts no end of grief in my own country because it has proved difficult to say just what those principles mean and to broker conflicts between them. Even more so in Kenya, I should think, with its marked religious diversity.

Separation

The draft (10) says religion and the state shall be separate, while the state shall treat all religions equally, but if the state treats them at all, it compromises that separation. It says that there shall be no state religion but at the same time (49.4) it says that religious observances and instruction may be conducted by the state as long as it does so equally and not compulsorily.

How can the state "conduct" without at some level establishing religion in general, if not any particular denomination? How will students of minority denominations in any given settings feel if the "instruction" is not of their denomination?

4. What about civil society and state relations? The draft enshrines "recognition of the role of civil society in governance [with its role] in ensuring the accountability of government." (13.2g) Well intentioned, unquestionably. But is civil society's necessary independence from government implicitly co-opted by this provision.

And article 51.5c mandates a body "independent of government" to "set media standards and regulate and monitor compliance with these standards". If this body is to be "independent" of government, its power to "regulate" makes it in effect another form of government. What about "independence" of the private media? For all the rich array of necessary rights enshrined by this draft constitution, these are two fundamental dimensions of democracy where this draft, probably unintentionally, courts the risk of diminished rather than enhanced democracy.

5. Two more general potential problem areas concerning this draft are Independent commissions and offices and devolution. The rationales and merits of both are clear and undeniable, but the potential downsides can outweigh the advantages if not carefully structured.

John Harbeson teaches political science at the City University of New York