Consensus Building in Constitution Writing: A Case Study on Kenya

Abstract

In the wake of post-colonialism, Kenya has struggled to forge a new constitution. The country has had two recent constitution writing episodes. The first effort failed, and the second passed successfully in 2010. Looking at the procedural differences between the two episodes can help to explain what accounts for different outcomes in constitution writing processes. This thesis uses Kenya as a case study to examine procedural variables that may impact success or failure in constitution writing processes. It describes the events that occurred in each of Kenya’s two recent constitution writing processes. It then evaluates each process across metrics of success and variables that influenced the outcome in each episode. It focuses on procedural change and consensus building in order to understand the impact of procedure on outcome in constitution writing processes. This thesis finds that certain procedural variables help account for the difference between Kenya’s two recent constitution writing processes. By taking steps to consult members of the public, having representativeness of key deliberative bodies, including provisions for involving key political leaders in the process, having procedures that encouraged compromise, and taking steps to include representativeness of major ethnic groups, one process succeeded while the other failed. The Kenya case study represents an important example of the positive impact of procedural variables upon constitution process outcome. Understanding the procedural variables that can positively influence the outcome of constitution writing processes can be useful in designing and evaluating constitution writing processes on a larger level.