The Ghai in our Constitution

Abstract

Professor Yash Pal Ghai did not just lead the process of writing the Constitution of Kenya; he is actually embedded in it. Our Constitution benefited not just from Ghai’s long experience in negotiating peace but also his philosophy and approach to constitution-making. As a person who has taught and studied the new Constitution since its inauguration on 27 August 2010, I have often been astonished by its uniqueness. Many times I have pondered on the ingenuity of its authorship and I have become more and more convinced that most of this has its origins in Ghai; born of his own personal experiences, professional engagements and the resultant intellectual ideas. Ghai was born and brought up in colonial Kenya. Growing up as an Asian exposed him to discrimination on the basis of race, and as part of a numerically disadvantaged population. Even upon independence in 1963, Kenyan Asians remained a racial other and minority. Pretending to act on behalf of the majority, the emergent black African elite simply took the place of the minority white race that ruled during the colonial epoch. The Asians remained subordinate.1 Even in the greater East African region, then encompassing Kenya, Uganda and Tanzania, the experience of Asians was not just, a situation Ghai and his brother reflected on.2 In August 1972, the world watched in awe when Uganda’s President Idi Amin ordered all ‘Indians’ out of the country within 90 days. At a personal level, Ghai has narrated to me experiences of discrimination both at the University of East Africa Dar es Salaam (Dar) – where he taught and served as Dean of Law – and at the East African Community (EAC) where his nomination as Chief Legal Officer was resisted by Kenya, which preferred a black African instead. Inevitably, this background must have informed Ghai’s expansive scholarship on management of diversity and inclusivity. But it is not in Ghai to be a silent minority. He speaks truth to power, which in the 1970s caused a lot of tension between him and the emerging black African elite in the region. His book, Public law and political change in Kenya,3 co-authored with the late Prof Patrick McAuslan, confirmed the suspicion that he would not be a ‘partner in crime’. The book, which is the first account of the social, political and legal developments in East Africa since the colonial epoch, offered a critical approach to the subject and was not taken kindly by those then in authority. And for this Ghai suffered. His appointment as the first African Dean of the University of Nairobi’s Faculty of Law was opposed by the top echelons of the Kenya African National Union (KANU) leadership. Unbeknownst to him, he had been declared persona non grata in his own country. Unwanted at home and welcomed a bit more in the neighbourhood, Ghai did not report to his post at the University of Nairobi, did not stay at Dar for longer than a year, but instead headed overseas.