Friday, July 21, 2017

Rights and visions

That there are respected thinkers who believe -- fervently so -- that the Constitution of Kenya is a vehicle for economic, or even human, development gives me pause. I have always seen a constitution as serving one principal function -- the organisation of government, that is, the establishment of the form of government, the delimitation of the powers of government, the manner of electing or appointing senior officials of the government. In delimiting the powers of government most constitutions now rely on bills of rights that enumerate the rights and fundamental freedoms of citizens.

What a constitution does not do is set out a blue print for economic or human development. For sure, if government is organised as intended in the constitution and it does not exceed its powers as delimited in the constitution and not only protects the rights and fundamental freedoms of citizens as enumerated in the bill of rights, then the outcome is likely to be enhanced human and economic development. But while these are outcomes of constitutionalism, they are not objectives of constitution-making.

Part of the reason why many believe that a constitution is a a human or economic development blueprint is in how bills of rights have incorporated economic and social rights (the right to housing, healthcare, education, social security, water and sanitation), as part of the traditional bill of rights. These "second-generation" rights almost always are economic in nature and their protection or guarantee by the government will almost always have economic implications for the government. For example, the more people who have access to affordable healthcare -- whose affordability is a mixture of a well-regulated insurance market and public subsidies for citizens who can' afford insurance premiums -- the lesser the number of citizens living in poverty and likely to compete for better-paying job opportunities. But, as I have pointed out, while the objective is to guarantee, for example, healthcare for all, the objective is not to guarantee healthcare for all at a cost that would bankrupt government.

It is for this reason that economic planning plays a vital role in meeting the human development needs of citizens. Economic planning, part of the mandate of government, is guided by the delimited powers of government and with the overall object of protecting or guaranteeing the rights and fundamental freedoms of citizens. Economic planning is the servant of the constitution, and not vice versa. But they are not the same thing.

It is why I agree with those who remind us that Kenya Vision 2030 is not the constitution -- and that it is not cast in stone. It is a mere economic blueprint. To revise it -- or jettison it -- would not lead to a constitutional crisis. It is not the Vision 2030 tail that wags the constitutional dog. The easiest way to look at the differences between the two is this: the outcome of the implementation of the Kenya Vision 2030 may be greater protection or guaranteeing of the rights and fundamentals of Kenyans, but that was never its objective. The obligation of government to respect, protect and guarantee Kenyans rights and fundamental freedoms is to be found in Chapter Four of the Constitution, not the pages of the Kenya Vision 2030.

The Constitution is the rule-book that allows the government to aim at specific economic development goals. Vision 2030 is the roadmap that shows the economic development tasks that must be completed in order to attain those economic development goals. Without the constitution, there is no government and without government, there might as well be no economic development goals. The reverse is not true. Regardless of Vision 2030, the government still has a constitutional obligation to respect, protect and guarantee ones rights and fundamental freedoms.

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