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Government Professor Advised Drafters of Approved Kenyan Constitution

Scholars counseled against split executive

Posted: August 6, 2010

Kenyan voters have approved a new national constitution. Zachary Elkins joined several other constitutional scholars to advise the Kenyan leaders who drafted the constitution ratified this week by popular vote.

Elkins and his colleagues counseled officials on everything from establishing an effective balance of power to eliminating redundancies or ambiguities in the proposed constitution. Kenya's Committee of Experts on Constitutional Review had several rounds of dialogue with the scholars on issues big and small.

"Kenyan leaders wrote a constitution that was remarkably clear, well integrated and detailed," says Elkins, an assistant professor in the Government Department. "We worked with them to anticipate some of the consequences of their choices and to identify alternatives."

Elkins directs the Comparative Constitutions Project (CCP) with Tom Ginsburg, a law professor at the University of Chicago. CCP has developed a dataset that records the characteristics of more than 900 current and historical constitutions.
 
Sponsored by the Rome-based International Development Law Organization, Elkins and Ginsburg convened a group of constitutional scholars from the University of Chicago, University of Illinois, Duke University and elsewhere to review drafts of the Kenyan constitution and provide feedback from December through March.

The East African nation of 40 million wrote the new constitution as part of a power-sharing agreement that ended widespread violence after the 2007 presidential elections. The new constitution is designed to limit presidential powers and overcome ethnic divisions.

In reviewing the draft, Elkins and his colleagues suggested that leaders might end up creating a new set of problems if they stuck with a particular brand of semi-presidential system that includes a powerful president as head of state and a powerful prime minister as head of government.

"The need for power sharing in Kenya is great, but the division of power between the president and prime minister may augur conflict," the group wrote in December. "At its worst, stalemate between the two executives can encourage extra-constitutional action. In Kenya, recent events suggest that the obstacles to cooperation may be even greater."

The Kenyan drafters ultimately chose a pure presidential model in the proposed constitution. The committee also followed the scholars' advice on clarifying the definition of "citizen," creating a more flexible amendment process and a host of other issues.

Elkins and Ginsburg participate periodically in other constitutional exercises in Latin America, Africa and Asia, and are now working with a citizen's organization in Fiji, where constitutional deliberations appear imminent.

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