Constitutional Law For Programmers

I am living in what I consider to be a very exciting time in modern history.  Kenya, is undergoing a constitutional referendum!  Hooray.  African politics aside, for this post is not about post-colonial government flaws, constitutional weakness, or things like that, I am excited because to me a constitutional shift, however minor, is like building a new operating system for a computer.  Yes there are heaps of other analogies out there I could make, but I really don’t want to make them; whoever said an analogy had to be relevant anyways?

The constitution of a nation is the first level of a complete framework of government presented to law makers.  It makes fundamental decisions based on a peoples’ culture, the inherent capability of physical resources, about how the government and its citizens can and should interact.  It provides a moderated interface through which everyday humans are allowed to access and modify the raw human resource that makes up their system, their nation. It answer the question, “To what extent are we allowed to manipulate these resources before some moderating force steps in and says, ‘Woah, you are out of line and need to stop or I will make you stop.'”  It provides a set of fundamental legal limitations which is exciting because limitation is what breeds creativity, as long as creativity is in fact simply a new level of interface: providing a simple, more friendly means for citizens to interact with the law withoutactuallygoing through therigmarole required to actually allow the action to pass through the moderating force that is theconstitution.

Some constitutions are designed to be flexible, others are very rigid and situation specific.  Flexible, adaptable constitutions present more philosophical limitations on law makers, allowing the law makers to modify the system to suit a time period’s needs.  Other constitutions spell out explicit “Dos” and “Don’ts” of government, limiting theflexibilityof law makers, but arguably creating a need for even more creative law making.

Sometimes constitutions simply need to be rewritten.  After hundreds of years of operation, with younger, fresher constitutions showing new potential, olderconstitutiongo in for refactoring.  Best practices have been adopted, shown to work for those governing a particular population size.  More assumptions can be made about what citizens will and will not tolerate from their government, and sometimes crust and legacy laws are simply thrown away, never to be discussed again, and if in your personal situation it still apples, nuts to you.

Just as these constitutions arere-factored andacademics argue over the theoretical limitations of particular systems, eventually decisions must be made; hybrid systems are created.  Caveats are inserted into the margins beseeching law makers to ABSOLUTELY NOT USE THIS LAWunless you have to…. and the academics go back to arguing about their theory, about how constitutions should be pure representations of systems while the law makers mutter that the “ideas people” have never had to actually “make” or “implement” anything in their life.  Pure systems are the real trash; hybrids, compromises, are true order of the day.

New changes may not take effect immediately; deprecation periods are built into newconstitutions.  Features of the old constitution will be relevant for given periods of time based upon the perceived need to support the feature until its use can be supplanted by newer methodology.  Someconstitutionseven allow for majoraddendato their fundamental operation, but these addenda tend to go through a stricter vetting process, ensuring their security, stability and need before being tacked on.  Once in a while, an addendum will fail however, and there is a need for a rollback to a previous version of the constitution, now without the failed addendum.

Constitutions are fun, and many governments love to see how long they can push their current constitution before needing a rewrite.  Installing a new constitution is never an easy task, as it effects all laws built upon the oldconstitution: some may become completely  incompatible, some may see their functionality integrated into the newconstitutionand thus become obsolete themselves while their purpose lives on, and some may make the transitionseamlessly, not really relying upon the framework directly provided by theconstitution.  As a rule of thumb, the closer the law comes to infringing upon constitutional limits, the greater the chance it will need to bere-factoredwhen a new constitution comes into effect.

It is most certainly an exciting time for Kenya, and for me.  I love that I can be here for this process and though I know no system-wide transition will ever go 100% smoothly, I wish Kenya the best, no matter what the decision may be.

Some interesting “alternative” operating systems you may be interested include:

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1 Comment

Filed under Ars Politico Africanae

One response to “Constitutional Law For Programmers

  1. jesseosmun

    It’s been very interesting to read the pro and con about it all. A friend of mine who is a deacon in the ACK ( Anglican Church Of Kenya) like most of it but like other Kenyans vehemently opposes the Sharia courts and the abortion clause. My guess is that the referendum will pass, but without changing existing abortion law.