Blog of the International Journal of Constitutional Law

Kenya’s draft moves on…

Kenya’s draft Constitution moves today to the office of Attorney General Amos Wako, who has four weeks to prepare the text for public referendum. The current text is the same as that forwarded by the Committee of Experts to the Parliament in late February—Parliament debated but failed to pass some 100 proposals for amendment. Prime Minister Raila Odinga called for no further amendments (perhaps thinking about Wako, whose earlier draft constitution was key to the unraveling of the prior process in 2005). So it seems that this draft will likely be the final product, or very close to it.

Some observations on the draft: It is a significant improvement over earlier versions in the process, on a number of dimensions. Although the draft establishes a presidential system, which has led to some concern given the troubled history of presidentialism in Africa, this is probably preferable to the semi-presidential system that was initially proposed (though arguably inferior to the parliamentary model). There are a number of independent commissions with some institutional protections, though limited powers. The parliament will have a role in approving appointments and so this may form some check on the president. The devolution scheme, which was a major focus of debate, will establish 47 counties which are to be the primary subnational unit. The counties are represented in the Senate, which has legislative powers for topics related to subnational governance.

This is not to say that all is perfect in the draft. 47 counties is both a large number, requiring much administrative duplication, and a small number, in that local government will be relatively far from the communities on the ground. These units may be susceptible to capture and domination by one or the other group in any given geographic area.

The election system, at both levels of government, will involve special seats to represent women, the disabled, and other groups, but the process for picking these seats is unwieldy: they will generally be apportioned to political parties on the basis of the seat totals (not vote totals) earned in the relevant general election. Without any provision for dealing with electoral remainders, these will likely be a source of contention. Other looming electoral issues: Art. 137 implicitly prohibits cabinet members from being nominated for president (because they cannot serve as members of parliament). This seems unwise, as it may discourage strong leaders of smaller parties from entering the cabinet, undermining national cohesion. The draft also adopts a ban on ethnic or regional parties—such bans are typically ineffectual, and may have perverse side-effects if the government uses the prohibition to outlaw opposition parties.

Constitutional politics around the draft are heating up. Certain church groups are opposing the draft because it restored some limited possibility of abortion under conditions of medical necessity, and because it allows for jurisdiction of kadhi courts over some limited issues of Muslim personal law. These issues have plagued Kenya’s constitution-making efforts for some time, and the draft handles them in a compromise fashion. Indeed, by declaring that life begins at conception (a position shared by all religions) the draft already reflects some capture by the Christian groups. No doubt there will be many other issues raised in the forthcoming campaign. Under the transitional provisions Art 12(3), current President Kibaki seems to be prohibited from running again, so this may lead to some opposition, though I’m too poorly informed about Kenyan politics to know if this is really an issue.


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Published on April 7, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

Kenya’s constitution moves on toward referendum

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Published on April 7, 2010
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Constitutional amendment proposals in Turkey

Turkey’s ruling Justice and Development Party (AKP)has submitted a new version of their proposed Constitutional amendments to the Grand National Assembly. The draft differs only slightly in substance from the previous version that the party submitted. One of the new additions is a proposal to alter Article 157 of the Constitution to provide judicial immunity to judges of the Military Supreme Administrative Court would have judicial immunity.

The first version of AKP’s proposed amendments was submitted to parliament last Tuesday, despite warnings from Turkish President Abdullah Gul that the party should take more precautions before amending the constitution. The reform package contains seven revisions from the original amendments unveiled at the end of March, including a highly-disputed reform to the judicial system that would allow military and government officials to be tried in civilian court. The reform would also make it harder for the government to disband political parties that challenge the country’s nationalist establishment and would ban the prosecution of the 1980 coup leaders. AKP says it created the amendments to promote democracy in Turkey and support its bid into the European Union (EU). The proposed amendments have been met with opposition by Turkey’s Supreme Court. In an interview in late March, the president of the court Hasan Gerceker declared that the proposed amendments threaten separation of power and judicial independence. Another iteration in the longstanding struggles between the AKP and the military-judicial complex, if I can use the term.

Thanks to Serkan Yolcu for the heads-up!

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Published on April 7, 2010
Author:          Filed under: hp, Tom Ginsburg, Turkey

Update on Kenya

The Kenyan

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Published on April 6, 2010
Author:          Filed under: Uncategorized

Kenya parliament passes draft…

without amendments. we are not certain whether this means there were no amendments from the version proposed by the Committee of Experts in late February, or the version proposed by the Parliamentary Select Committee. stay tuned for more information…


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Published on April 2, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

A Step Backwards for the Iraq Judiciary

The Iraq judiciary has made great strides in its capacity and independence since the fall of the Saddam regime, as demonstrated by brave and politically unpopular decisions made in the name of fair and impartial adjudication. In 2008 the Iraq Supreme Court vacated the Council of Representative’s decision to strip a parliamentarian’s immunity so he could be prosecuted for traveling to Israel. In so doing the court held that a 1950’s law making travel to Israel illegal violated the Constitution’s freedom of movement. In 2009 the Supreme Court overturned the de-baathification (and subsequent disqualification from office) of the President of the Iraqi Bar Association. In its brave and unpopular decision, the Supreme Court determined that de-baathification only applied to public posts and that the Bar Association, as a non-governmental entity, did not qualify. The previously de-baathified individual was allowed to resume his position.

It was hoped that these decisions were indicators of the type of judiciary Iraqi courts were becoming — independent, fair and impartial, and grounded in sound legal reasoning – and gave hope that the judiciary could play a pivotal role in the development of the rule of law in Iraq. Unfortunately, a recent decision involving the March parliamentary elections gives cause for concern.

In the wake of Iraqiyya’s (led by Ayad Allawi) victory over the State of Law Party (led by Prime Minister Maliki) – Iraqiyya won two more seats than State of Law – the Prime Minister has looked to the courts to secure his chances of retaining his post. Article 76 of the Iraq Constitution calls for the President to “charge the nominee of the largest Council of Representatives bloc with the formation of the council of Ministers.” In 2006 there was no uncertainty over the meaning of this provision – the United Iraqi Alliance, a coalition (formed before the election) of Shia parties, had the largest number of seats in Parliament and was charged with forming a government.

Arguing that the word “bloc” is ambiguous (the Constitution does not specify whether “bloc” refers to pre or post-election groups and the word itself can mean large or small coalitions), Maliki asked the Supreme Court to interpret Article 76 so that “largest Council of Representatives bloc” would be defined in terms of post-election coalitions that come together to form a government — giving Maliki the chance to reach agreement with other parties in order to create the “largest bloc” and therefore first crack at forming a government. In a disappointing reversal of the earlier (and more democratically principled) understanding of Article 76, the Supreme Court adopted Maliki’s reading of Article 76.

The Iraqi judiciary’s development over the past seven years is admirable and should be the envy of most other Arab judiciaries. One might even be tempted to give it a pass given the high stakes surrounding these elections – clearly emerging courts must pick their battles carefully, asserting too much strength and independence too soon could have long-lasting negative consequences. Still, one has to be disappointed with a decision that seems to favor the political establishment over the rule of law.

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A Step Backwards for the Iraqi Judiciary

The Iraq judiciary has made huge strides in its capacity and independence since the fall of the Saddam regime, making brave and politically unpopular decisions in the name of integrity and fair and impartial adjudication. In 200

The political turmoil over the Iraq elections was bound to touch the judiciary —
It could have been an opportunity for the judiciary to assert its independence and firmly establish itself as an

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Published on March 31, 2010
Author:          Filed under: Uncategorized


Legislation has been introduced in Quebec to ban women from covering their faces when seeking or providing provincial services. This would effectively prevent Muslim women needing such services from wearing the niquab, a veil that covers the face. Supporters argue this promotes gender equality and more open interactions between the province’s citizens. Even national liberal party leader Michael Ignatieff (a former Harvard professor) has indicated his general support. Opponents argue this would take away the choice of these women and infringes on their religious freedom. Newspaper articles regarding the issue suggest widespread support in Quebec. There have been several situations already where government related entities in Quebec have refused to provide services. Ironically, one of them involved a woman who was denied the chance to take a French language course. Thus, some supporters have argued the bill would simply clarify existing practices. Whatever one’s position, this proposal seems at odds with a Canadian constitutional theme that the nation takes a “mosaic” approach to diversity, unlike the U.S. “melting pot.”

On another Quebec religion topic, I recently learned, from a student and from other sources, that some profanity in Quebec uses Catholic terminology in a derogatory way. This is certainly different from the U.S where most profanity has a connection to sexuality. The veil and the profanity issue both suggest some general skepticism about religion in Quebec, to say the least.

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Published on March 29, 2010
Author:          Filed under: hp, Mark Kende

Gay rights in Zimbabwe: perhaps not just yet

If you’re looking for an example of a country where gay rights are not exactly catching on, look no further than Zimbabwe. The BBC reports that Robert Mugabe, not exactly a darling of Western liberals to begin with, had this to say about the possibility of introducing gay rights into the new constitution under discussion: “That issue is not debatable, it’s not up for discussion. It is just madness, insanity. The ancestors will turn in their graves should we allow this to happen.”

Oh but surely the brave leader of the opposition to Mugabe, and now Prime Minister, Morgan Tsvangirai, had something more enlightened to say? Not exactly. His words: “Women make up 52% of the population… There are more women than men, so why should men be proposing to men?” So … the reason not to support gay rights is that there are too many women to go around in Zimbabwe? It is for the good of women that gay men be pressured to marry them, because that is so obviously a formula for domestic bliss all around? And straight men, for their part, will be so pleased to have the added competition for wives? How delightful for everyone.

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Published on March 27, 2010
Author:          Filed under: David Law, gay rights, hp, Zimbabwe

Guest blogger Nardi: Courting Constitutional Chaos in the Philippines

Just six weeks before Filipinos go to the polls, a recent Supreme Court decision and a poorly timed birthday have caused yet another constitutional crisis. Under the 1987 Constitution, all Supreme Court justices must retire when they reach the age of 70. Current Chief Justice Reynato Puno will turn 70 on May 17. However, Chapter VIII, § 15 seems to prohibit the president from making any appointments two months before the next election (May 10) up until the end of her term in office. This means the Supreme Court would have to wait at least eight weeks for the next president to fill the vacancy. When incumbent President Gloria Macapagal Arroyo decided to proceed with the nomination process anyway, critics cried foul.

As is so often the case in the Philippines, the Supreme Court was asked to settle the dispute. In De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), the justices concluded that the § 15 prohibition against “midnight appointments” did not include judicial appointments. The ban is located under Chapter VII, which deals with the Executive branch, whereas the Judiciary falls under Chapter VIII. Moreover, sections 14 and 16 both deal exclusively with Executive appointments; if § 15 had had a broader scope, the constitutional drafters would have made the distinction explicit.

Second, the Supreme Court noted that Section 4(1) of Chapter VIII requires the president to fill any vacancy on the Supreme Court within 90 days. However, in some cases it would be impossible for a president to comply with both this mandate and the Chapter VII, § 15 prohibition. If an incumbent justice retired early in the election season, for example, 90 days might pass before a new president could replace him.

Finally, the constitutional drafters included the § 15 prohibition in order to avoid “midnight appointments” intended to buy votes or influence the outcome of the election. However, under the constitution, the Judicial and Bar Council screens and nominates judicial candidates in order “de-politicize the Judiciary.” Furthermore, the justices felt there would be less risk of a new justice feeling indebted to a retiring president than to a newly elected one.

Nine of the fifteen justices joined the majority opinion, while two justices who voted to dismiss on other grounds appeared to sympathize with the outcome. Three justices, Chief Justice Puno and his two most likely successors, abstained. Only one dissented.

As soon as the Supreme Court announced the verdict, it came under attack. Several members of the 1986 Constitutional Commission publicly stated that they had never intended to exclude the Judiciary from § 15. Some Filipinos have even accused Arroyo of seeking to appoint a chief justice in order to have an ally on the court who could thwart any attempts to prosecute her for corruption or human rights violations.

Meanwhile, the Arroyo administration defended the decision as necessary in case the Supreme Court has to decide disputes over the election results. Estelito Mendoza, a former solicitor general, dismissed fears that the new justice would be personally loyal to Arroyo by pointing out that the current justices, all of whom were appointed by Arroyo, have frequently ruled against her.

Indeed, over the years, the Supreme Court has announced sweeping decisions in favor of environmentalists and human rights activists. Progressive lawyers and activists have become the court’s strongest stakeholders. However, the De Castro v. JBC opinion threatens to undermine this alliance. The same lawyers who supported the court’s progressive policy goals are also Arroyo’s most vocal critics. They seem to view De Castro solely as a political vote of support for Arroyo. Furthermore, many of them considered Chief Justice Puno a champion of their causes, but view his likely successor with suspicion.

The Supreme Court also lacks allies among the main presidential contenders, who have attacked the De Castro decision so forcefully as to make President Obama’s State of the Union Address appear a model of decorum. Benigno Noynoy Aquino III, a senator and current frontrunner, even threatened to impeach the justices in the majority. Whoever wins on May 10 will not be pleased that the Supreme Court “robbed” him of the opportunity to appoint the next chief justice.

This whole imbroglio raises several fascinating questions about constitutions and judicial politics. How do constitutional courts interpret judicial appointment procedures and maintain an appearance of impartiality? Do “midnight judicial appointments” risk reducing the legitimacy of the court? What motivates courts to abandon certain stakeholders or support retiring politicians? The Philippines’ frequent constitutional crises have unfortunately stunted its political and economic development, but make it a fascinating place to study constitutionalism.

–Dominic Nardi

Editors note: Dominic J. Nardi, Jr. is a visiting research fellow at the Governance Institute. He holds a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He has worked in the Philippines on several occasions with public interest organizations.

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Published on March 26, 2010
Author:          Filed under: hp, Philippines