Conference Summary
The British Institute in Eastern Africa, in partnership with the Katiba Institute, hosted a successful 3-day conference in Nairobi from 9 -11 June, 2011. The conference provided a unique opportunity to reflect critically on the new era of constitution making in Eastern Africa and the broader role of law and development in the region.

The first day saw a number of prominent East African and international academics from the fields of law, political science, history and literature address these themes in historical and comparative perspective. We were especially honoured by the presence of Dr Willy Mutunga, newly appointed Chief Justice of Kenya. His opening remarks considered the role of the judiciary under the new constitutional dispensation.

In the first session Professor Goran Hyden and Professor Chris Maina Peter reflected on constitutional challenges in Tanzania, past and present, with particular reference to the ‘top-down’ nature of independence constitutions and the burdensome legacy of the one-party state in that country. As Professor Hyden argued, independence constitutions written to mould elite political orders have now been replaced by transformational constitutions that instead aspire to create socially just societies. But with people’s participation officially held to be central to this transformation, how is it, questioned Professor Maina, that the mumblings of Tanzania’s constitutional review process can only be heard in the corridors of the elite?

The next session focused more specifically on the consequences for women of the new constitutional reforms and on their role in bringing these reforms about.  Professor Wanjiku Kabira’s personal reflections on the embattled role of women’s groups in the early stages of Kenya’s reform process left the audience in no doubt as to the tremendous progress that has since been achieved for gender equity in Kenya. Of course, as Professor Patricia Kameri-Mbote reminded us, such progress as has been made is reflected only in the text of the constitution. The new normative regime provides important leverage for change. However, it remains to be seen whether this is realized through equitable implementation, particularly in the emotive context of land. Finally, drawing comparisons with the Kenyan experience, Dr Linda Musumba concluded by reflecting on women’s uncertain stake in South Sudan’s ongoing transitional constitutional review process.

In the final session of the day, Professor Ben Sihanya developed a close textual analysis of the checks on executive power in Kenya’s new constitution. He concluded that there was reason for optimism given the improved devices for accountability now established. In his paper Professor Yash Pal Ghai also noted the gap between textual change and real implementation.  There remained, he warned, significant barriers to constitutional implementation in the state, the economy and the wider society. Professor Patrick McAuslan concluded the day by discussing a further political limitation upon Kenya’s new regime of liberal legal rights. This was constituted by the international community’s approach to post-conflict state building which tends to value order and security over democratic transformation of governance institutions. In summary it can be said that the reigning sentiment of the first day of the conference was that democracy and social justice are not luxuries. Rather they are paramount to sustainable peace and development.

The first day boasted an attendance of over 100 civil society activists, academics and students. It attracted media attention from the Daily Nation camera crew, whose filming of Dr Willy Mutunga appeared on youtube.com.

Over 10 and 11 June the focus and style of the event changed. Senior academics acted as prepared discussants for early career scholars from 12 different universities across the world, who tackled the socio-legal discipline of law and development in a more informal, workshop setting.

Professor John Harrington chaired the first panel entitled Rights and Constitutionalism. Jack Mwimali (University of Nairobi) began by arguing that the promises of the new Kenyan Constitution allowed an extension in the standing of citizens and groups to sue for violations of fundamental rights (locus standi). Drawing on comparative examples from South Africa and India, Mwimali envisioned a new era in Kenya where infringements of economic and social rights are tackled through public interest litigation. Edga Sichangi (Aids Law Project) also focused on the social and economic rights guaranteed in the new constitution, with a particular emphasis on the right to health. Ongoing litigation regarding access to anti-retroviral medicine, Sichangi argued, involves a challenge to the constitutionality of Kenya’s stringent intellectual property regime. Hanna Weijers’ (Tilburg University, the Netherlands) discussion of intellectual property rights also placed such protectionism at odds with the broader developmental agenda that it claims to support. Using case studies of ICT development from Zambia, Weijers argued that intellectual property protections often muzzle the type of innovation and subsequent economic growth that flourishes in the absence of legal formalisation.

The second panel of the day, Constitutional Change and Human Rights, was jointly chaired by Professor Yash Pal Ghai and Professor Goran Hyden. Drawing lessons from Kenya’s difficult constitutional history, Vincent Mutai (Moi University) began by discussing the importance of formal amendment procedures in safeguarding against the excesses of executive power. When constitutions fail in their functions as bulwarks of human rights international decrees can technically fill the void. But, as Luis Franceschi (Strathmore University) argued, the disjointed interplay between domestic and international legal spheres, characterized by sensitivities surrounding sovereignty, often results in poor levels of human rights implementation at the national level.

Law, Banking and Financial Inclusion, chaired by Dr Ambreena Manji and Dr Radha Upadhyaya, concluded the day with a topical focus on Kenya’s expanding financial services sector. Joy Malala (University of Warwick) began by exploring the regulatory challenges presented by mobile money transfer as a viable payment system in Kenya. Using MPESA as a case study, Malala specifically considered the possible shape of an appropriate regulatory mechanism for consumer protection. Nathan Tuimising (University of Warwick) shared the results of his ongoing investigation of Kenya’s growing private equity businesses. Feedback discussions concluded that appropriate legal conditions were in fact inconsequential to this growth. It was spurred instead by improved macroeconomic conditions and a glut of global liquidity.

Kerry Kyaa, East African Research Fellow, began the workshop on 11 June by reflecting on her experiences as a BIEA East Africa Research Fellow. The two-year fellowship provides a rare opportunity to build the research skills of local scholars. It provides a supportive environment within which East Africans from diverse academic fields can pursue their own research interests. Publication is encouraged and Fellows are integrated into a wide, collaborative network of like-minded researchers.

Saturday’s first panel, Law and Natural Resources Management, was chaired by Professor Patrick McAuslan. Reynolds Richter (New York University) began by questioning the ambitions of Kenya’s late colonial state to fashion social reality through law. With the drive to create a private land market in coastal Kenya in the late 1950s, the prospect of individual titling unearthed a wave of property disputes, rather than the intended sentiment of national unity. Significantly, these were fought out in courtrooms in the divisive idiom of particular local identities. In the contemporary context of Tanzania, as Bashiru Kakurwa (University of Dar es Salaam) reminded us, formalisation of land titles remains a fashionable policy response to underdevelopment. In his final thesis, Kakurwa intends to understand why, despite numerous initiatives since the 1990s, conflicts over land in Dar es Salaam persist. From the local to the global, Dr Philip Apuuli’s  (Makerere University) analysis of the colonial legacy of the 1929 and 1959 Nile Waters Agreements included a serious warning of the potential for a violent escalation of water politics in the region. There was, he argued, a need to agree and implement equitable sharing of the Nile waters. The thread connecting all three papers was the question of how to resolve disputes over present-day use of natural resources notwithstanding the destructive legacy of historical agreements, planning laws and allocations of land rights.

‘Local autonomy under threat’ was the dominant sub-theme of the Nations, Territory and Belonging panel, chaired by Professor Jill Cottrell Ghai. Benjamin Saccaggi (University of the Witwatersrand) explained that only vague and contradictory provisions in South Africa’s heritage legislation protect local cultural and heritage rights. Using the case study of Sekuruwe Village, Saccaggi illustrated how legal loopholes allowed a mining company coercively to exhume Sekuruwe’s ancestral graves. Through blatant disregard for critical traditional ceremonies, ambiguous legislation arguably permitted a violation of Sekuruwe’s constitutional right to cultural life. Angela Kronenburg (University of Wageningen) described the legal pluralist scene of Loita, Masaailand in Kenya. As land dispute litigants ‘forum shop’ between the apparatuses of local and state justice, Kronenburg argued that the traditional authorities view not only their legal, but more crucially, their political clout as being under threat.

The final panel of the event, International Criminal Justice in Kenya, was chaired by Dr Godfrey Musila. Thomas Obel Hansen (US International University, Nairobi) began by discussing the effects of the International Criminal Court process regarding the orchestration of post-election violence on domestic politics in Kenya. Deepening the ruptures within the coalition government and shaping the likely coalitions in 2012 succession politics, the ICC process is being manipulated to serve the interests of those in power. While Hansen confirmed that Kenya’s stalled domestic criminal and political processes had invited ICC intervention, Charles Kamala (Khabarak University) questioned the moral and legal right of the ICC’s investigations. Kamala suggested a cultural relativist alternative: ‘hybrid punishments’ which balance distributive, corrective and retributive justice.

This three-day event was an important initiative for two, interlinked reasons. Firstly, it happened at a time when several African countries are showing an interest in reordering their constitutional political orders. Comparative and historical reflection on this trend is a crucial, but often neglected complement to technical processes. The expectations of contemporary constitutions are great: they are instruments of transformation for state and society, rather than merely guides for administrative government.

Secondly, the event provided a rare opportunity for networking and mentoring between young African scholars and their senior counterparts. As such it contributed to fulfilling BIEAs aim of being a hub for academic exchange in the region and of actively supporting high quality scholarship on issues of contemporary relevance.

The event raised the profile of the BIEA’s Nairobi office. Over three-quarters of attendees had never visited the BIEA before and already there is a clearly and frequently expressed demand for similar events in the future.

Courtesy of British Institute of East Africa