BY MARGIT HELLWIG-BOETTE
Back from my Christmas holiday in Germany, I find myself, where I left Kenya three weeks ago: debating the draft constitution.
In 2009 Germans celebrated the 60th anniversary of their constitution. The drafting of a constitution against a specific historical background is always unique, but recalling some elements of the German Basic Law may give food for thought for the Kenyan debate, too.
After two world wars started by the German Kaiserreich and the Nazi regime including terrible crimes against humanity the Basic Law laid the ground for the Federal Republic of Germany in 1949. With few changes this constitution is still in place. It has proven to stand the test of time.
Article one defines its core: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”
The founding fathers and mothers of the constitution derived this commitment to the protection of human dignity and human rights from German history. They wanted to prevent Germany from taking the road to barbarism ever again.
From the very beginning the constitution enjoyed the solid backing of all political parties and stakeholders of society such as trade unions, churches and NGOs. The support was unanimous, because the constitution solved a core problem of German nation building: It clearly defined the relationship and the mechanism of sharing power and budgetary resources between the central state and the German regions, the federal states.
It introduced a two chamber system to balance power between both levels: the central parliament, the ‘Bundestag’, elected on the national level, and the second chamber of representatives of the federal states, the ‘Bundesrat’. As the German nation is culturally and politically deeply influenced by its different regions or former tribes, power sharing on the basis of a clear division of competences was considered essential for the management of the state.
In the long history of nation building in Western Europe in the 19th century, Germany was the last country to become a unified state. Against the background of two world wars, for which Germans had to assume responsibility, they came to realise that a centralised state with only one centre of power and one strong leader did not provide enough checks and balances to prevent misuse of power by the leadership of the country.
Therefore the constitution opted for a federal state on the basis of a parliamentary system with strong institutions, an independent judiciary, parliamentary control of the head of government and a ceremonial president. And it provided for a system of proportional representation, which Germans still consider to be the best way to represent the will of the people.
After the Berlin Wall fell in 1989, the Basic Law also helped to manage German reunification on the basis of freedom, democracy and human rights. Of course, even 20 years later much remains to be done. Achieving freedom, democracy and unity is a process that is never finished, neither in Germany, nor in Kenya.
But what matters after all these years: German politicians in Parliament and government in Berlin as well as in the 16 federal German states and the people living up-country in the villages and small towns in Germany have always solved all their problems peacefully.
And this is what I also wish for the Kenyan debate at the beginning of this New Year 2010, which will be decisive in the run up to the 2012 elections. Unlike Germans in 1949 and 1989 Kenyans had the great chance to participate in the constitutional debate. Now discussions will continue in Parliament, and I hope that decision makers will live up to the expectations of the people. I wish that Kenyan politicians would finally understand that the constitution is not about them, but about a peaceful future of their country. Or, to quote a wise 18th century American lawyer: “The constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government.”
(Mrs HellwIg-Boette is the German ambassador to Kenya)