Akademiforelesningen i humaniora og samfunnsfag

Chimera of constitutionalism:
State and society in developing countries

Foredragsholder: Professor Yash Ghai, Hong Kong/Kenya

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[1] Chimera:  “a hope that is very unlikely to be fulfilled” (BBC English Dictionary)

Abstract
In the last half century a large number of countries have established new constitutions in search for a political order governed by the rule of law. Most have failed. In order to understand the difficulty of creating a constitutional order in these circumstances, it is necessary to appreciate that the constitution, as fundamental law, is supposed to provide the framework for state laws and policies. It seeks to ensure the smooth operation of the political system by de-personalising power, and by channelling the expression of views and competition through prescribed institutions in accordance with clearly understood and valued procedures as well as facilitating the resolution of differ-ences and disputes that inevitably arise. It relies on rules of general application and assumes a broad agreement on societal objectives.

Various explanations have been given for the frequent failure of constitutions in developing countries. I intend to examine only three of these: the extreme ethnic heterogeneity of the people, the nature of the state, and the resistance of society.

Heterogeneity renders difficult the emergence of a sense of nationalism that encompasses the whole country. There are often stronger allegiances to the community or the region, and perhaps various, and often conflicting, world views within the country, and competing ethnic claims (result often of colonial as well as post colonial policies) hinder social solidarity. In post-colonial multi-ethnic states, "nation building" is an essential task of the constitution. But almost everywhere, this has proved an extraordinarily difficult task, because of the diminution of the value of citizenship, human rights and the rule of law.

The state in developing countries is dominant locally--and not suffi-ciently rooted in society. It obtains and deploys more resources, funds, revenue, etc. than any other entity in the country and has be-come the principal source of accumulation. The lineage of the state is colonial: exclusionary, built on racial and ethnic distinctions, the bureaucracy rooted in the imperative of the domination of the various societies that made up the colony, the close relationship between the colonial administration and the foreign business community, and its resistance to democracy. This system was buttressed by a battery of repressive laws and a repressive legal system, reinforced by control of armed forces, and the support of western powers obsessed about "order and stability".

The constitution operates within society and seeks to influence its development. The constitution may set guidelines for the exercise of power and the aspirations that the state must fulfil. A great deal of the agenda of reform characteristic of contemporary constitutions runs against societal values and prejudices, which for the most part favour elites. The political order intended to be set up by the constitution competes with other models and realities. While the state is strong in its subjugation of civil society, it is weak in its capacity to direct the movement of society.

Professor Yash Ghai
Professor Yash Pal Ghai is a citizen of Kenya and a Professor emeritus of Public Law of the Universities of Warwick and Hong Kong. He studied law at the Universities of Oxford (UK) and Harvard (USA), is a Barrister-at-Law of the Middle Temple (London) and has served as visiting professor, key-note speaker etc. in many different countries. He is the author of a large number of books and articles in fields like Constitutional law, Democratisation, Development, Ethnicity, Human Rights, Minorities and Law and Social change.

His honours include membership of the British Academy and a CBE (Commander of the British Empire).

Throughout the years, Professor Ghai has been at the crossroads of many constitution-making processes, partly as an individual scholar, partly on behalf of the UNDP and other international instances. Following rich experiences in many countries in Asia, Africa and Oceania, his recent experiences include prominent positions in the ongoing constitutional processes of Kenya and of Nepal.