Jill Cottrell

Constitution Making and Democratization in Kenya (2000-2005)

The article analyses the most intense phase of a process of constitutional review in Kenya that has been ongoing since about 1990: that stage began in 2000 and is, perhaps, not yet completed, there being as yet no new constitution. The article describes the reasons for the review and the process. It offers an account of the role of the media and various sectors of society including women and previously marginalized ethnic groups, in shaping the agenda, the process and the outcome. It argues that although civil society, with much popular support, was prominent in pushing for change, when an official process of review began, the vested interests of government and even of those trusted with the review frustrated a quick outcome, and especially any outcome that meant curtailing the powers of government. Even high levels of popular involvement were unable to guarantee a new constitution against manipulation by government and other vested interests involved in review, including the law and the courts. However, a new constitution may yet emerge, and in any case the process may prove to have made an ineradicable impact on the shape of the nations politics and the consciousness of the ordinary citizen.

Constitutionalising Affirmative Action in the Fiji Islands

Abstract The Fiji Islands are a society deeply divided in ethnic terms, especially between indigenous Fijians and Indo-Fijians, and also characterised by disadvantage and poverty in most communities. Various forms of affirmative action have been pursued, mostly in favour of indigenous Fijians who are not a disadvantaged minority, as in many states with significant affirmative action programmes, or the victims of discrimination. However, there is a perception on the part of the indigenous community that they are disadvantaged especially in relation to the Indo-Fijian community. The 1997 Constitution sought to mandate a more even-handed approach to affirmative action, but implementation was affected by a coup in 2000. After a brief theoretical discussion of the consequences of affirmative action in an ethnically mixed society, particularly regarding identity, this paper analyses the provisions of the Constitution, and discusses the problems of taking this type of approach to affirmative action. The discussion is placed in the context of the record of affirmative action programmes in Fiji itself, as well as of the background of Fijian society including the tensions between tradition and market, and of the whole issue of whether affirmative action is an appropriate way to producing greater social justice and harmony in society.

South-West Pacific

Of the Commonwealth island nations of the Pacific five are monarchies with the Queen as Head of State: Cook Islands, Niue, Papua New Guinea, Solomon Islands and Tuvalu. In 1987 Fiji, previously a monarchy, became a republic and left the Commonwealth; under the interim constitutional arrangements its current President is the former Governor-General, Sir Penaia Ganilau. Vanuatu and Western Samoa also have separate Heads of State. This chapter is mainly concerned with these countries, although we shall make occasional reference to Kiribati and Nauru which opted to unite head of government and Head of State, within a system which otherwise has many ‘Westminster’ characteristics. This model was also adopted by the non-Commonwealth state of Marshall Islands (formerly part of the US Trust Territory of Micronesia). We have very little information about how these systems have operated in practice, but it is worth glancing occasionally at them, since they formally vest authority in the cabinet and not the Constitutional Head of State, and restrict the tetter’s power in ways characteristic of the Westminster system. By way of contrast, Belau and the Federated States of Micronesia, formerly part of Trust Territory have systems closer to the Washington model, with executive Presidents, and are therefore excluded from this study.

Constitutional engineering and impact: The case of Fiji

The politics of Fiji have been closely tied to its constitutions. The military dominated administration replaced the independence constitution in 1990. This chapter examines the making and orientation of the 1997 Constitution. If the 1970 Constitution codified the existing configuration of power to maintain the status quo, and the 1990 Constitution gave stronger foundation for that configuration, the 1997 Constitution attempted to change power relationships and eventually the basis of politics, moving towards greater political integration and aiming to develop a common political community out of diverse races. The principal focus of the chapter is the social engineering aspect of the constitution, through a number of new devices, particularly the forms of representation and the structure of government. The Joint Parliamentary Select Committee (JPSC), had responsibility for the implementation of the constitution, working with an experienced draftsperson recruited primarily for preparing legislation for this purpose.Keywords: 1997 constitution; constitutional engineering; Fiji; Joint Parliamentary Select Committee (JPSC); political integration