Everything You Wanted to Know about Constitutions but Were Afraid to Ask

In one of his pithier moments, Alexander Hamilton, l'enfant terrible of the American Founding Fathers, reflected on the potential shelf-life of the recently ratified U.S. Constitution: "So long as we are a young and virtuous people, this instrument will bind us together in mutual interests, mutual welfare, and mutual happiness. But when we become old and corrupt, it will bind us no longer."

Kudos, then, to the United States, whose constitution has exceeded Hamilton's expectations, remaining in force for nearly twelve-score tumultuous years and counting. In part because of this success, having a written constitution has now become a sort of political gold standard for countries around the world (and seems very likely to continue being so for the foreseeable future).

This week, Constitute, an ambitious new initiative by the Comparative Constitutions Project in conjunction with Google Ideas (the tech company's in-house think tank), has made those 160-odd (in some cases truly odd) governing documents currently in effect worldwide accessible to a global audience. The site offers users the ability to access either an entire constitution by country name and date, or to peruse the documents by particular themes. Constitute aficionados can thus familiarize themselves with constitutional standards for hundreds of matters ranging from "indigenous rights" to minimum age requirements for constitutional court judges.

Current events make this initiative especially timely. Between five and ten brand-new national constitutions are produced every year, to say nothing of numerous revisions and amendments. And while they occasionally take shape around the birth of some new polity like South Sudan, or aspirational countries like Sahrawi, the great majority of these constitutions are written to replace failed predecessors. Soon, the site should also be adding these unsuccessful ancestors to the mix. Given the propensity among certain countries for rewriting their constitutions many times over (the current titleholder being the Dominican Republic, which has done so 32 times), this will eventually mean literally hundreds of obsolete constitutions -- to say nothing of similarly extinct fundamental charters for ex-states like Yugoslavia.

In a sense, Constitute inadvertently spotlights the need to avoid constitutional obsolescence precisely through its occasional omissions. Just consider the poignant void between Ecuador and El Salvador: It was just last year that Egypt's then-government haphazardly drafted and unilaterally ratified a constitution that was soon destined to fall into abeyance. Similar gaps where Tunisia and Libya ought to be likewise remind us of just how slow and frustrating the constitution-drafting process can be for many countries currently attempting to negotiate a tenable basic law -- preferably one inclusive enough to avoid Egypt's fate.

Tom Ginsburg, a professor at the University of Chicago Law School and co-director of the Comparative Constitutions Project, explained the philosophy behind Constitute in a phone interview: "Most people who are drafting constitutions have never done so before and hope to never have to do it again. We seek to empower both potential constitutional drafters and their citizens, so as to better inform the choices they will have to make to establish and preserve lasting national constitutions. With Google's help, we've been able to do just that."

And yet, beyond the admittedly niche interest of comparative legal scholars and constitutional drafters, Constitute should also prove a useful tool to those journalists, writers, human rights lawyers, and activists seeking to hold countries accountable for how well they follow their own laws. It will also help provide a better and more thorough understanding of regional and international trends involving individual rights or civil procedure.

Free and accurate translations of constitutions, particularly those of smaller or more obscure states, can be hard to come by, and constitutional revisions can be harrowing to track. As such, a site like Constitute promises enormous value to those who would seek to keep governments honest, for, ultimately, there is no guarantee that the course of a nation will actually reflect its constitutional design.

How better to understand sensational trials -- like the conviction of the Pussy Riot musicians for "hooliganism" or of Anwar Ibrahim for sodomy -- than by contrasting observed legal realities with the actual rights and procedures nominally guaranteed to all Russians or Malaysians under their respective constitutions?

For that matter, North Korea's constitution guarantees freedom of expression and religion while also promising fair trials and political rights. (Notwithstanding unofficial ambassador Dennis Rodman's attestations to the contrary, if you believe these guarantees are upheld, I have a friendship bridge to sell you....)

Yet while the respective texts of such sham constitutions, habitually ignored by their custodians, may seem irrelevant, they can often prove decisive. During the Helsinki Process of the 1980s, citizens in Soviet Bloc countries were often able to draw attention to such discrepancies -- the law as written vs. the law as lived -- to powerful effect.

It is by highlighting such contrasts that people without any formal legal training can best hope to identify government overreach and help to spark change. At best, Constitute can help fulfill this vital role while likewise offering valuable information on norms and best practices to those who might someday hope to reassemble the shattered foundation of some old system into a stronger and more enduring edifice.

Daniel Lansberg-Rodríguez is a fellow at the Comparative Constitutions Project and is a regular columnist for the Venezuelan daily newspaper El Universal. His Twitter handle is @Dlansberg.



Why Kenyans Shouldn't Let the Terrorists Bait Them Into Overreacting

As Kenya struggles to cope with the aftermath of the Westgate Mall attack, one of the biggest problems the country will face is likely to come from within: its own thirst for revenge.

Many experts have speculated about the motives behind the attack. The attackers themselves have assailed Nairobi's active support for the African Union military mission in Somalia, demanding the withdrawal of Kenyan forces. Analysts note that al-Shabab's influence within Somalia has been waning lately, and that this could have prompted it to stage the attack to demonstrate its continued potency and improving its attractiveness to recruits. Some have even speculated that the terrorists wanted to strike at a symbol of Africa's recent economic success. All of these considerations are well within the realm of possibility.

It's likely, however, that the planners of the attack on the Nairobi mall selected their target based on an additional criterion. Judging by the large number of civilian casualties they sought to inflict, one of their aims was almost certainly to provoke an overreaction by Kenya's armed forces and government against the Somali population living in Kenya. Kenya has a long history of carrying out draconian military campaigns against "problem groups" within the country, and the country's large Somali minority (pop.: ca. 1 million) presents an obvious target for reprisals. Terrorist groups often try to provoke overreaching by the governments they target. The resulting polarization contributes to instability in the target country, sometimes allowing terrorists to boost their legitimacy by posing as protectors of the persecuted.

The Kenyan state has used repression and violence as a strategy since it gained independence in 1963. From 1963 to 1967, Kenya's first president, Jomo Kenyatta, launched a brutal counterinsurgency campaign, known as the Shifta War, targeting Somali civilians and non-combatants in northeastern and coastal regions of Kenya. "Shifta," a Somali word for "bandit," was used by the Kenyatta government to describe the separatists in the country's northeast, where a group of ethnic Somali rebels was determined to secede from Kenya and join with Somalia. This counterinsurgency campaign not only targeted members of the Somali minority, but also other ethnic groups along the coastal region of Kenya, including the Swahili and Mjikenda. Thousands of those swept up were put into concentration camps. Though many commentators are quick to point out that coastal Kenyans and the Somalis are predominantly Muslim, this fact is less significant than the reality that the coastal communities and the Somali share a deep distrust of the central Kenyan state that stretches back to the Shifta War.

Later, in 1984, hundreds of Somali were murdered in the Wagalla Massacre, Kenya's response to the growing unrest among the Somali, who were frustrated at being alienated from state power.

Repression of the opposition, including of the Somali minority, became institutionalized during the 1980s under Kenya's second president, Daniel Arap Moi. It was Moi who built the now infamous Nyayo House torture chambers, where he detained real and imaginary opponents without trial. Many victims later testified to the cruel beatings and psychological torment inflicted upon them there. In the 1990s, Moi and his inner circle used violence and murder as a strategy to dissuade opponents from voting in Kenya's first multi-party elections.

Even after Moi left power, allowing a certain degree of democratic space to open in the mid-2000s, the Kenyan police carried out a wild campaign of extra-judicial killings targeting members of the Mungiki movement, a militant youth movement that was seen by the Kenyan authorities as inherently subversive. John Michuki, the interior security minister at the time, formed a death squad of about 16 police officers that was responsible for the assassination or disappearance of at least 5,000 people without trial or investigation, according to the United Nations and human rights groups.

While government oppression has not always targeted the Somali community as such, it's important to recognize that the Kenyan government has showed a readiness to use indiscriminate violence against non-combatant populations for decades. In all of these instances the Kenyan state has justified the repression in the name of national security. The state-sponsored slaughter of the 1960s, and again in the 1980s, is not a distant memory for the Somali, and al-Shabab is undoubtedly doing its best to play into this dynamic, given their desperate need for new recruits and their interest in striking back at the government in Nairobi.

Keeping these historical tendencies in mind is critical, since there are ominous signs from social media and press conferences that the Kenyan government is winding up for another heavy-handed response. David Kimaiyo, the head of police in Kenya, issued statements calling upon the police "to finish and punish" the terrorists. Such rhetoric is consistent with the terms used by Michuki when justifying the extra-judicial murders of the Mungiki only a few years ago. (The photo above shows a Kenyan police officer responding to ethnic riots in a Somali district of Nairobi last year.)

The government in Nairobi will need, of course, to attend to the justified fears of its population by carefully investigating the sources of this attack and doing what it can to prevent a replay. What the Kenyan government needs to keep in mind along the way, however, is that it can easily become its own worst enemy in its fight against al-Shabab and terrorism. Both the Somali and Muslim communities in Kenya feel perennially victimized. Further alienating these communities will not only hinder Kenya's War on Terror, but will provide fertile ground for al-Shabab's recruitment efforts. Even as things stand now, the political and economic marginalization of the Somali and coastal communities has tended to promote a certain degree of sympathy toward al-Shabab within the country. That's why Nairobi's next move will be crucial in determining whether al-Shabaab emerges as a significant force inside of Kenya itself.

Declan Galvin is a Global Human Rights Fellow at New York University, focusing on African politics.