Balkinization

Balkinization
an unanticipated consequence of
Jack M. Balkin

Balkinization Symposiums: A Continuing List

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
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Corey Brettschneider
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Mary Dudziak
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Joey Fishkin
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Jonathan Hafetz
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Andrew Koppelman
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Sanford Levinson
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David Luban
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Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
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Michael Stokes Paulsen
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Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
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David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Reviewed: Holland on Mugabe and Akpan's African Stories

Clinton and Mugabe

Constitutional Borrowing, circa 1960

Power Sharing Agreement Reached in Kenya

What a Constitutional Crisis Looks Like

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Sunday, June 29, 2008

Reviewed: Holland on Mugabe and Akpan's African Stories

Mary L. Dudziak

With Zimbabwe in the news this week, two new books on Africa are reviewed in the weekend newspapers. The first is Dinner with Mugabe: The Untold Story of a Freedom Fighter Who Became a Tyrant by Heidi Holland (Penguin Global), reviewed by Karl Maier for the Chicago Tribune. Crossposted from the Legal History Blog.

According to Maier, the author

peels back the layers of Mugabe's character through a series of interviews with people who know him best: former guerrillas, relatives, Catholic priests and the president himself in a rare encounter. The result is the best attempt yet to understand the mind of Mugabe. Step by step, Holland shows how one of Zimbabwe's most erudite Africans became a paranoid tyrant who has bankrupted his country and brutalized a generation....

Holland shows how Mugabe's childhood taste for revenge has colored his journey from the village of Kutama to the pinnacle of power in Zimbabwe. When leaders from the minority Ndebele tribe challenged his authority in the 1980s, Mugabe sent in North Korean-trained troops, killing tens of thousands in Matabeleland. When some whites backed the opposition in the late 1990s, he let mobs drive them from their farms, sparking economic catastrophe.

"Our present state of mind is that you are now enemies because you really have behaved as enemies of Zimbabwe," Mugabe chillingly told white farmers in a 2000 TV address to mark the 20th anniversary of the country's independence.

Continue reading here.

Also reviewed is a collection of short stories, SAY YOU'RE ONE OF THEM by Uwem Akpan. Susan Straight writes in the Washington Post that "these five stories -- set in Nigeria, Kenya, Rwanda, Ethiopia and Benin -- are all about children and their perilous, confusing lives, their searches for bits of grace and transcendence along with food, family and survival. This link allows a huge, perplexing continent to be known in intimate ways." The author's "incredible talent as a writer prevents" the most tragic of the stories "from becoming a polemic, diatribe or object lesson." The rest is here. Read an excerpt here.

Labels: Africa

Posted 12:57 PM by Mary L. Dudziak [link] (1) comments

Wednesday, May 21, 2008

Clinton and Mugabe

Mary L. Dudziak

Hilary Clinton has compared the Democratic Party’s failure to count the Florida and Michigan Democratic primary votes to the election crisis in Zimbabwe. There may be one similarity, but it is not the one Clinton claims.

CBS News reports that the candidate complained that in Michigan and Florida,

"people go through the motions of an election only to have them discarded and disregarded." "We’re seeing that right now in Zimbabwe," Clinton explained. "Tragically, an election was held, the president lost, they refused to abide by the will of the people," Clinton told the crowd of senior citizens at a retirement community in south Florida. "So we can never take for granted our precious right to vote."

There are so many obvious differences between the Florida and Michigan Democratic primaries and the Zimbabwe election crisis that it is difficult to know where to begin. But perhaps there is one similarity: in Zimbabwe, a losing candidate, incumbent Robert Mugabe, seeing his impending defeat, has worked to change an outcome produced under pre-existing rules. In arguing that the Democratic party should abandon its rules post-hoc – rules Clinton herself agreed to before the voting – she makes a parallel move.

Labels: Africa, Politics

Posted 7:28 PM by Mary L. Dudziak [link] (6) comments

Sunday, May 18, 2008

Constitutional Borrowing, circa 1960

Mary L. Dudziak

In Thurgood Marshall’s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered.

This essay, forthcoming in Green Bag, illuminates Marshall’s work on a Bill of Rights for Kenya in the early 1960s as an exercise in constitutional borrowing.

When Marshall went to Kenya he "looked over just about every constitution in the world just to see what was good," and he told an interviewer that the United States Constitution was "the best I’ve ever seen." But at a conference in London on the Kenya constitution, he offered a draft bill of rights for Kenya that had no American constitutional language in it. The rights Marshall embraced as ideal, at least for an emerging African country, drew most extensively from the Universal Declaration of Human Rights, and parts were based on the constitutions of two newly independent countries, Nigeria and Malaya. Marshall’s American sensibility appeared in his document most clearly in his assumption that independent courts would enforce the bill of rights, and his emphasis on equality, something he still hoped to realize in his own country.

The essay is coming soon in Green Bag, and is posted on SSRN. The full story of Marshall’s work in Kenya is told in Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford University Press, 2008), which includes Marshall's bill of rights for Kenya in an appendix. The Introduction to Exporting American Dreams can be downloaded here.

Labels: Africa

Posted 9:39 AM by Mary L. Dudziak [link] (4) comments

Thursday, February 28, 2008

Power Sharing Agreement Reached in Kenya

Mary L. Dudziak

Kofi Annan announced today that a power sharing agreement has been reached between Kenya leaders Mwai Kibaki, the incumbent who claimed victory after a disputed presidential election in December, and Raila Odinga, the opposition leader. According to news reports, Odinga will hold the post of Prime Minister, an innovation in Kenya, and Kibaki’s and Odinga’s parties will each hold 50% of cabinet positions.

It appears that the post-election crisis, and the negotiations to stop the killing, have accomplished what several years of efforts to reform the Kenya constitution have been seeking: divided executive power, with leadership shared between a President and a Prime Minister.

While the agreement may succeed in bringing the immediate crisis to a close, it will be interesting to see how this divided government will function pending the next round of elections.

Concentration of executive power has been a problem plaguing many African nations. In Kenya, Kibaki was originally elected on a platform promising constitutional reform, but he put brakes on the reform process after his election. Kenya faces many challenges going forward, but one important question is whether either of these leaders will cede power in the future following regular, multiparty elections.

For more on Kenya, local news on breaking developments can be found at allafrica.com. Superb radio commentary on the broader issues underlying the crisis can be found on-line from Makau Mutua, Interim Dean, University at Buffalo. See also my earlier post, What a Constitutional Crisis Looks Like.

Update: The Nation (Nairobi) has these details:

The deal, brokered by Africa Union chairman President Jakaya Kikwete of Tanzania and Mr Kofi Annan, will see the creation of a grand coalition sharing power according to party strength in Parliament.

The deal provides that the PM will coordinate and supervise Ministers, while Cabinet positions will be shared proportionally according to party strength in Parliament.

The President will have the authority to sack Cabinet members, but only with written agreement from leaders of the respective coalition party.

The Cabinet will comprise the President, the Vice-President, the Prime Minister, Deputy Prime Ministers and Ministers.

The coalition will collapse at the end of the current Parliament, or if the parties so agree, or if one partner withdraws.

Another update: the power sharing agreement, calling for constitutional reform, is here.

Labels: Africa

Posted 9:54 AM by Mary L. Dudziak [link] (1) comments

Tuesday, January 08, 2008

What a Constitutional Crisis Looks Like

Mary L. Dudziak

"We

are in a constitutional crisis," Kenya opposition leader Raila Odinga said today, as the Kenya election crisis continues to unfold. There was much debate about whether a constitutional crisis was unfolding when the United States faced its own presidential election debacle in 2000. The Kenya news, in contrast, is often collapsed into a simpler story about tribal violence. This tends to reinforce the dominant narrative of Africa as a region of unending despair, where legal reform seems hopeless. South Africa, with courts that look familiar to us, is held out as an exception.

Although tribalism is an element of the Kenya story, with members of smaller tribes acting on age-old resentment toward the Kikuyu, who have dominated Kenya politics since independence, it is also a political crisis, and Kenya politics in the last decade have unfolded in the context of an on-going debate about constitutional reform. The branch of government at the center of constitutional debates has not been the judiciary, but the executive.

"Big man" politics dominated Kenya for decades. The release from detention of Jomo Kenyatta became a demand of the independence movement in 1960-61, and Kenyatta himself, who would become the nation’s first President, was a focus of Kenya nationalism as different tribes in the colony joined together as a nation for the first time. Kenyatta would lead the nation until his death in 1978, when Vice President Daniel Arap Moi took the reins of power, only to release them after two decades of autocratic rule when post-Cold War democratic reforms swept the world.

As Kwasi Prempeh has illustrated here and here, the most interesting story in contemporary African constitutional politics is not what courts are doing, but the role of structural constitutional limits on the executive, and the troublesome persistence of "imperial" presidencies.

The scope of presidential power was central to recent efforts to rewrite the Kenya constitution. President Mwai Kibaki, initially elected on a platform that endorsed constitutional proposals that would limit his power, stepped back from this pledge after his 2002 election. His constitutional proposals maintaining a powerful presidency were rejected by voters in a constitutional referendum in 2005. The 2007 elections occurred against this backdrop of national debate over the nature of the Kenya presidency.

"Many Kenyans thought that last week’s election would mark a watershed in the country’s political history," writes Robin Lustig, "the moment when leadership passed to a new generation. They feel robbed by the old guard, the elite who have held on to power for so long." Whether constitutionalism is on track in Kenya turns on whether presidents cede power following regular, multi-party elections. So it is not just tribal rivalries that are at stake in Kenya today, but whether the promise of constitutional reform, and the basic practice of democracy, has meaning in Kenya.

In recent news, African Union leader, Ghanaian president John Kufuor, is traveling to Kenya to mediate. As in the recent Pakistan crisis, lawyers are playing a role, with the Law Society of Kenya calling upon Kibaki to step down.

What role does the United States play in this? During the Cold War, the United States turned a blind eye toward human rights abuses under Kenyatta, in the interests of maintaining ties with a Cold War ally. A question we must ask about current interventions in Africa and elsewhere is whether the "war on terror" drives the U.S. to support reliable friends and to ignore their failings. The U.S. appears to be playing a helpful role in the current crisis, with United States assistant secretary of state for Africa Jendayi Frazer traveling to Kenya to promote mediation between the parties. "The people of Kenya were cheated," she said.

The U.S. aim of promoting democracy around the world is better served by promoting democratization, including fair elections, rather than the Cold War model of supporting loyal allies.

For those interested in following this story, I’ve posted Kenya news links on the Legal History Blog.

Photo credits: Raila Odinga, Mwai Kibaki.

Labels: Africa

Posted 12:51 PM by Mary L. Dudziak [link] (24) comments

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