Constitution Drafting Round I: Burma v. Kenya

Here’s something you don’t see every day: somebody comparing Burma’s constitution-drafting process to their own in a favorable light. Well, kind of. Here’s from Kenya’s Daily Nation:

Kenyan commentators and politicians also like to speak about how the nearly 20 years it has taken to get this far in the constitution making process is one of the longest in the world. 

We checked, and it is not just “one of the longest”, but the longest. Until 2008, the record was held by Burma (Myanmar), which took 17 years to get its constitution.

If Kenya’s constitution is adopted, it will represent the longest deliberations over a constitution in world history. However, it hasn’t had a continuous national convention for the past 20 years, unlike in Myanmar. Furthermore, rumor in Rangoon claims Maung Maung started drafting Burma’s current constitution all the way back in 1988 or so – essentially, 20 years before the referendum in 2008. So, the title for longest constitution-drafting process is not yet clear.

However, as the article points out, one thing is clear: Burma and Kenya both took a long time drafting their constitutions for extremely different reasons:

The common explanations for why Kenya’s constitution review has taken so long are, first, lack of political will and, second, because it has a querulous multiparty system that no single group has been able to totally dominate in recent years.

However, Burma doesn’t have such “problems”. First, Senior General Than Shwe and his fellow officers are running one of the most repressive regimes in the world.

It just goes to show that different paths can lead to similar superficial outcomes. On that note, Zachary Elkins and Tom Ginsburg have a new article out discussing how certain procedural variables affect constitution-drafting. In short, they find that public participation can influence the presence of rights in the draft constitution, but legislative participation does not lead to an increase in the legislature’s power under the constitution. You can download it here.
[Note: the comic is from the Daily Nation website. Kenya’s church is opposed to the constitution because it might relax restrictions on abortion.]

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