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 American Founders Calling Kenya: Advice on Your New Constitution 


By E. Douglas Clark

Director of UN Affairs, The Howard Center

A New Day in Kenya

On August 4, 2010, the people of Kenya approved a new constitution.

No matter that some government leaders had warned that by failing to make requested changes to the draft constitution, the Parliament had “failed Kenyans because we did not capture their aspirations and wishes.” No matter further that members of Parliament had engaged in what one media source dubbed “dirty tricks” to avoid having to vote on proposed changes to the draft. Or that pro-life advocates had warned that the provision ostensibly protecting the unborn was nullified by the practically unlimited exception allowing abortion when in “the opinion of a trained health professional,” the mother’s life or health is in danger.  

With the vote on August 4, all such objections were suddenly relegated to a historical footnote. The die was cast. The constitution was a fait accompli.

Kenyans are hopeful that their new constitution will bring its promised changes, like curtailment of presidential power, reformation of the judicial system, and greater local control over national resources. But the fate of the unborn in Kenya still hangs in the balance. Is there now no way to secure their rights?

A Lesson from the American Founders: Take One More Step

Just over two centuries ago in the American Colonies, as the delegates from the Constitutional Convention in Philadelphia completed their work, they looked forward to the welcome changes that ratification of the new Constitution would bring. One of the ideas they had discussed but voted down in the Convention was a possible Bill of Rights. Those opposed claimed simply it was unnecessary, as the state constitutions were not being repealed.

But as the process of ratification in the Colonies began to play out, there was widespread concern (notwithstanding Alexander Hamilton’s insistence to the contrary) that absent such a Bill, the new Constitution would be interpreted as devoid of the necessary protections. In fact, when several Colonies sent their ratification documents, they included recommendations for amendments to secure individual rights.

Accordingly, once the Constitution was ratified and the first Congress met in New York,  James Madison, who as chief architect of the Constitution had originally opposed a Bill of Rights, was now wise enough and open-minded enough not just to support such; he actually brought his immense talent to the table again and drafted the Bill of Rights. Its passage as the first ten amendments to the US Constitution remains the legendary bulwark of individual liberty in America.

There may be a lesson for Kenya here. Its people have approved a new constitution to obtain the long-delayed changes promised therein. Much of the opposition to the new constitution was over the issue of the unborn, with proponents claiming that the proposed constitution does offer adequate protection. But Kenyans may still act to quiet all fears on this point, as did the American Founders with the issue of American rights. An amendment to assure protection of the life of unborn—thereby answering the concern of those who believe the new constitution defective on this colossal point—would go a long way toward national unity.

Another Lesson from the American Founders: It Takes More than the Constitution

The delegates to the Constitutional Convention of 1787 are described by historians as men of singular wisdom and insight. Their timely appearance in the founding of the United States has been called “an explosion of political genius” (Richard B. Morris), for this “galaxy of leaders” was “quite literally incomparable,” and their collective talent remains “unmatched since that day” (Henry Steele Commager).

But whatever wisdom those men of genius had painstakingly infused into the Constitution, they knew that the document alone—even with its Bill of Rights—could not guarantee peace and prosperity. For that, one more thing would be required, as stated by John Adams: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Nor was this principle unique to the United States, he explained: “Statesmen… may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand.”

The same truth was widely held by the other signers of the Constitution. According to William Paterson, who later served as a Supreme Court justice, “Religion and morality are necessary to good government, good order, and good laws.” Perhaps most impressive of all are the words of the immortal Washington, who in his Farewell Address after eight years as President of the fledgling Republic, declared: “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports…. Can it be, that Providence has not connected the permanent felicity of a Nation with its virtue?”

Washington was speaking not only to his fellow Americans but to the world. His words are an invitation and a guide to every nation seeking “permanent felicity.” Kenyans have a new constitution, but that alone—even if they do add an amendment offering greater protection to the unborn—cannot guarantee national peace and progress. That will require also the exercise by Kenyans themselves of the timeless values found only in faith and morality. Only these can offer the greatest hope that that any constitutional provision claiming to protect the unborn will be more than an empty promise.

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