CURBING MAJORITY TYRANNY, PROMOTING SOCIAL INCLUSION

India's Constitution, like others the world over, was ratified by a constitutional assembly. Unlike many or even most, however, it is to a considerable extent the creation of one dominant legal intellect, B. R. Ambedkar (1891–1956), who, as Nehru's law minister, had considerable latitude in drafting it and who has told history a great deal about what he wanted to achieve and at times had to fight to achieve. He argued extensively for a particular conception of the Constitution, one in which a central purpose was protecting vulnerable minorities from majority tyranny and promoting their full social inclusion. He focused centrally on the evils of the Hindu caste hierarchy, but he was also passionately concerned with the situation of India's women and its religious minorities. Although he did not address the problems faced by sexual minorities and transgender people, his name and his principles have been central to recent legal activism in these areas. In a very general way, Ambedkar saw the practice of stigmatizing and excluding groups of people as a major obstacle to India's success as a nation, and one that law could productively address.

In this chapter, I assess the implementation of Kenya's 2010 Constitution, one of the most important efforts in recent years to transform a political culture through constitutional change. Using a case-study approach, I assess the successes, challenges, and failures in meeting the Constitution's ambitious reform agenda. I then offer explanations for these varied outcomes.

The reforms required by the 2010 Constitution have been implemented with varying degrees of success, in fits and starts, as well as with varying speeds. Although the judiciary has transformed to become relatively more independent of the Executive than before the 2010 Constitution, its empowerment has been met with backlash, particularly from Parliament. In addition, corruption in the judiciary has continued. By contrast, the anti-corruption authority, the Ethics and Anti-Corruption Authority (EACC), recognized for the first time as an independent organ in the Constitution, has been hampered by its continued inability to prosecute and instead has had to depend on the Director of Public Prosecutions to prosecute suspects. Parliament has since the adoption of the 2010 Constitution been instrumental in the removal of two EACC Chief Executive Officers as well as other senior officials. Thus, the constitutionalization of leadership and integrity principles stands in sharp contrast to continued widespread corruption in all branches of government including in the newly established regional system of governance. A number of factors including new leadership and a swathe of new judges have been critical to the progress made in the judiciary, and the absence of such leadership in the EACC, as well as the lack of a consistent commitment to combat corruption in both the Executive and the Legislature, is a major explanation for the relative difference in outcomes. The resulting picture is one which reminds us of the need for political will to effectuate institutional transformation.

I also attribute the relative success in judicial reform to the highly energized civil society movement, which includes activist lawyers and individuals who have been at the forefront in monitoring the implementation of the Constitution and testing its contours in Court. In addition, donors have provided additional encouragement and funding to assist the very expensive process of implementing these constitutional changes.

A standard way to think about constitutional efficacy is to compare the text of a document with reality, as captured in some empirical measure. In our experience, it is an extremely rare conversation about comparative constitutions that is not interrupted by a plaintive interjection – by well-meaning observers – that constitutional rules are not always enforced. While commentators no doubt intend such remarks as a caution against excessive formalism, we find these interjections tiresome and sometimes wish they were deterred by cruel and unusual punishment. Too harsh? Perhaps, but the interjection misunderstands the appeal of constitutions entirely. The surprising fact is not that constitutions are often ignored; it is that they guide the behavior of power-hungry leaders at all! Indeed, the holy grail of constitutional scholarship is the identification of those conditions that lead leaders to adhere to their prior commitments (and to those of their forbears). In this chapter, we reconsider an important condition that is central to constitutionalism: time.

Our chapter makes the observation that efficacy changes over time: Constitutional provisions can be either more or less effective over time (or the effect can be constant). In thinking about the criteria for constitutional success, it seems useful to consider whether there are general trends in efficacy over time, and whether certain provisions are more vulnerable than others to decay and desuetude. Using rights as a focus, this chapter undertakes that inquiry.

We have grappled with this question previously, mostly in an effort to speak to the normative implications of long-lived constitutions (Elkins et al. 2009) and, then, mostly in passing. Our return to the question arises in the context of our current investigation into the origins, spread, and consequences of constitutional rights. Our empirical approach, therefore, is myopically rights-centric. To be specific, our research question is, do constitutional rights become more or less effective as they age?

To emphasize our focus on rights, and since the analysis of institutional effects can be maddeningly aggregate and abstract, consider the right to health in Kenya and South Africa. Kenya entrenched the right to health when it rewrote its constitution in 2010 (Article 43). South Africa incorporated a right to health in its 1996 post-apartheid constitution (Article 27). Neither country had a right to health in its prior constitution.

As detailed throughout this volume, assessing the performance of a constitution is a complex and subjective task, and perhaps even an impossible one. Problems include determining the objectives against which performance is to be measured, what can be positively and negatively attributed to the constitution, and what the counter-factual in any given case might be. We focus here on one aspect of constitutional implementation which is crucial to nearly all constitutional stories, and an issue which we often observe as a key practical challenge which does not receive the attention it deserves – that of constitutional transitional provisions (“transitional provisions”).

Transitional provisions provide a series of directions through which the new constitutional regime is established, and the old order is phased out. During this state of “interregnum” between one constitutional order (or in some cases, a lack thereof) and the new order, transitional provisions must cover a series of issues including, inter alia, the establishment of new institutions and reform of continuing institutions; continuity of law and the status of the current law on the books, transitional justice processes and the timing and procedures for the first elections.

The argument that more attention should be paid to the performance of transitional provisions is threefold. Firstly, as mentioned by Ginsburg and Huq in the introductory chapter, transitional provisions provide a “threshold bundle of steps” set forth by a constitution in the process of institutional development. As they rightly observe, these steps are generally methodologically simple to measure, and cannot only reveal how well implementation is progressing, but might also reveal where blockages might lie, and afford an opportunity to address such obstacles.

Secondly, without the establishment of the fundamental building blocks of the new constitutional order, the performance of the constitution in terms of fulfilling its own goals and objectives is immediately subject to question. Cracks in the foundations will more often than not lead to significant challenges in constructing the new house.