Biography: Ghai, Yash. 1938. Born in Kenya and graduate of the University of Oxford and Harvard University. Senior Fellow and Lecturer at Yale Law School, 1971-73. Professor of Public Law at the University of Warwick, 1978-89 and 1992-97. Sir Y.K. Pao Professor of Public Law at the University of Hong Kong, 1989-2006. Chairman of the Constitution of Kenya Review Commission, 2000-2002. United Nations Secretary-General’s Special Representative for Human Rights in Cambodia, 2006-2008. Constitutional adviser to over 20 countries including Iraq, Afghanistan, Papua New Guinea, Nepal, Fiji, Somalia, Libya, and Kenya.
SO: Sue Onslow (interviewer)
YG: Professor Yash Ghai (respondent)
Transcript Part One:
SO: Dr Sue Onslow interviewing Professor Yash Ghai at Senate House on Tuesday, 14th July 2015. Professor Ghai, thank you very much indeed for coming to Senate House to contribute to this oral history of the Commonwealth project. Please could you begin by saying how you became involved in the Commonwealth and its activities.
YG: I became involved through my work on constitutions. When I started my career as a law teacher, I was particularly interested in constitution law. This was a time when countries in East Africa were becoming independent and, indeed, when Kenya’s conferences at Lancaster House took place. I was finishing doctoral work in Oxford. When they came to London, I would come and stand outside Lancaster House to watch them go inside.
SO: This was in 1961/1962?
YG: Yeah, ‘61/ ‘62. I would start talking to them asking about their progress. My thesis was on protection of minorities and so that was all very close to my interests. Then when I went to teach at the new law school in Dar es Salaam, Kenya had not actually become independent, though it did soon thereafter, as Uganda and Tanganyika had become. There was much constitutional engineering going on: Nyerere was moving towards a one party state. Uganda was struggling to define its relationship with the Buganda. And then in 1963, December, Kenya became independent. So it was a good time to be studying constitutions.
That was my academic experience, but then I got asked to (I not quite sure of the dates) help with the drafting of the independence constitutions of Papua New Guinea and Seychelles Islands. At that stage, my bigger engagement was with the constitution of Papua New Guinea. My engagement in Seychelles was somewhat limited because I was advising the opposition. They said, “Can you come to Seychelles?” I was in Nairobi (and) Dar es Salaam so it was easy. But they didn’t have the money and said, “We are holding a fete on Sunday and if we raise enough money, we’ll send you a [laughter] ticket.” But they were not able to raise the money [laughter].
I met them when they came to London (where I was on another matter) and my role as they described it was largely to look at the electoral system, which wasn’t really my main expertise–they were concerned that the other side was engineering, fixing things. They were meeting in Lancaster House and we were staying in a hotel nearby. At the end of each day, we would get together and review the day’s proceedings and then anticipate the following day’s business.
But my own work came to an unexpected end because one evening our leader, who was Leader of the Opposition then, Albert René didn’t come when we met to assess the day’s proceedings. We all used to go back, have a quick wash and come down, have a drink and meal and talk over it. We waited and waited. He didn’t come till quite late, so we were getting a bit worried. Well, meanwhile he and the Chief Minister had taken off to a pub on their own and they had made several agreements, including on power sharing. The Chief Minister told him, “You can be number two in the cabinet, etc. And don’t worry about the electoral thing. We’ll sort it out.” So I had nothing more to do. I did have a note for them, which I probably have lost forever, on a fair electoral system and they did make some changes, but he lost interest. I saw them now and then, and within two days, the whole thing was wrapped up because that was the big stumbling block.
SO: Because of the private, backroom deal in a pub?
YG: Yes, exactly.
SO: But, Sir, the proposals that you’d made for the electoral system, had you been arguing for proportional representation?
SO: Had you been arguing for the block votes protection for minorities?
YG: Well, I can’t really remember to be very honest, but I think I proposed proportional representation as I think that is fairer than first past the post. We also recommended an independent electoral commission. At that time they didn’t have that. They were a bit afraid that when they drew the boundaries, there would be more room for manipulation in first-past-the-post system. A proportional representation system would reflect better the popular support for parties. The other thing I was working on for a while was the question of the islands on which Britain had built military installations. Their view was that the islands belonged to them. They wanted to see if there was some way to recover these. Later, I realised that Mauritius had an interest in this). So I went to the Foreign Office; they had made a treaty with the US. In fact, most of the troops were the US. They made an agreement with the US for establishing a military base there. But the Foreign Office won’t give it to me. They said, “No, these are confidential documents.” I said, “Come on, this is a Government. These are people who are now negotiating independence. They claim their island belongs to them.” But they wouldn’t show it to me. An hour later, I was at the American Embassy invoking the Freedom of Information Act of the US Congress. I said, “I’m entitled to it.” “Of course you are, Sir” and they produced the treaty with Britain. But the conference ended without that being resolved and they said, “Well, we’ll leave it at that” and the Seychelles people accepted that.
SO: At independence then, Britain maintained its military bases and its naval installations on the island in perpetuity?
YG: Yes, in perpetuity basically. We wanted to establish the entitlement of Seychelles Islands to that part of it as was hived off by Britain because they wanted to have a military base there.
SO: So did you look to other Commonwealth countries which had been in the same predicament at independence, such as Cyprus for instance?
YG: No, I haven’t looked at that. Mauritius also had some feeling that there were some islands, but I was not involved in Mauritius, so I don’t know. I am not aware of any, but they must have problems in the South Pacific where there are so many what are called ‘island states’ now.
SO: Sir, did you have any contact with the Commonwealth Secretariat during this time?
YG: At that time, no. I did visit them. I think both delegations made a courtesy call more than anything else, but then the next thing was Papua New Guinea. Maybe it was before Seychelles, I have to look at the dates…
SO: Seychelles joined the Commonwealth, having become independent in June 1976. Papua New Guinea in September ’75.
YG: Yes, that’s right. In fact, one reason I was drawn in later in the Seychelles was because they’d heard of my work in Papua New Guinea.
SO: How did you become involved in the constitutional arrangements for devolution in Papua New Guinea?
YG: I was quite surprised. I was in exile from my country. I won’t go into that unless you want to. I was teaching at the Yale Law School and got a telegram one day from Papua New Guinea [asking] whether I would go there to write the constitution for independence. I was quite surprised. I didn’t know very much about Papua New Guinea. It turns out that the Australians offered them some consultants from Australia, and the local leaders felt that they may be biased and they may be influenced by, or even directed by, the Australian Government. So they wanted input from a totally independent person. They just had established a law school and the first dean of the law school was, at one stage, my dean in Dar es Salaam. So they asked him and he recommended me because, at that time, I was doing some work for Nyerere on Tanzania’s constitution. I can come to that later if you want to.
SO: Yes, please.
YG: Then there was also an Australian lawyer in the Attorney General’s office who had done his PhD in this university. They asked him and he recommended me too and when I asked him years later, “Why? You don’t even know me. We never met.” He said, “Your book Public Law and Political Change in Kenya was the standard book at that time in this course we were doing, so I got to know of your work, etc.” So they asked me if I would come. I was teaching and so it was hard for me to be away for long periods. What we agreed was that I would go periodically…and this was before the internet…
SO: I was going to say, travelling from Yale to Port Moresby!
YG: Yes. I said, that I would stay for as long as I could and could make return visits. In between I would keep in touch through faxes. I had loads of faxes that went both ways. At that time, the funding came from, I think, the Australian Government, or from the Papua New Guinea Government, but they were paid by the Australians for this project. On my subsequent visits, I think I was approached by the Commonwealth Secretariat to say that they were willing to support my expenses and fees, and so on. I discussed that with the Chief Minister, Michael Somare, and it was agreed that the ComSec would pick up my expenses. All together I must have made six visits, some short, some long.
SO: How contentious was the proposal for a devolved system?
YG: Well, that was quite contentious because, as in most colonies, the country was ruled under very centralised administration. Papua New Guinea had an enormous diversity. They had 400 language groups, but some languages have died out since then. There were a lot of islands as well, so there were a lot of different identities. They didn’t use that term so much as the term is used now. So the issue of power sharing was raised by some of the communities, which were mostly island communities. The most active was Bouganville; one of the major leaders (John Momis) was also the Member of Parliament and Deputy Chair of the Commission I worked with; and since Michael Somare, who was a titular Chair, was busy with routine Government business, Momis essentially became the Chair. Kaputin was the other leader who came from the northern islands. They were very anxious that there should be some form of decentralisation so that it would give them some autonomy. Some areas were not so keen because they didn’t have educated people, so they were nervous about the responsibility that would come in devolution.
So I was asked to develop some ideas on devolution, which I did, taking account both of the groups that wanted it, and then those who didn’t, by prescribing a number of powers for the units but giving those units who did not want some powers, they could opt out of them—or indeed rely completely on national administration. It made it difficult for the central government to manage provinces (as these units were called). I advised that it would be unwise to impose devolution on groups not ready or willing to assume responsibilities, and at that stage devolution should be established in areas where there was a demand for it—especially as they were likely to attempt secession. It would make little sense to start on independence by invading certain areas. Nor did they have the armed forces which could prevent secession. And Australians probably would not be keen to become involved in their domestic quarrels. My proposal, I thought, was fair to all groups.
Well, that was more or less accepted. I actually got a very good scholar from Canada, Ron Watts. He was, in my view, the greatest authority on federalism. He was then professor at Queens University in Canada and he subsequently became the Vice Chancellor or the President of that university. He still is active. He is now 84 and he and I had been working for the last year or so, in Solomon Islands. That’s another story I’ll tell you. We are supposed to meet there in September, but I got a letter from him the other day saying, that he was not well and the doctors had advised him against travel. [Ron Watts died in October 2015]
SO: Well, he is the most extraordinary repository of knowledge.
YG: Yes. He is just fantastic, and a really nice man. So anyway, I asked if he would come. Now, I don’t know whether ComSec paid for him, or we found money within our own budget. I wasn’t anyway dealing with administrative matters. When we had done it, we had agreed on it, the Constituent Assembly had endorsed this and before the draft was formally adopted, there was a delegation of HABITAT, I think. Or UNEP, one or the other.
SO: My apologies, but please could you explain the first acronym, HABITAT?
YG: HABITAT. The UN body on housing. Among the three members of the delegation was a Kenyan, Philip Ndegwa, an economist, then working for the UN. Subsequently, he returned to Kenya and become a very key figure in the new public administration. He said to Sir Michael Somare, “Oh, you’re stupid to have devolution. We in Kenya, in the 1963 constitution, were forced by Britain to have federalism and we abolished it within months of independence.” This was true: Jomo Kenyatta said many times later that he did not want devolution but Britain insisted on it as the price of independence. He agreed to it for this reason, but intended to abolish it after the British went away. There’s a very good account of this bit of history by an American historian, Robert Maxon, who has published a study of the negotiations on the basis of the British archives which were opened up a few years ago. [Kenya’s Independence Constitution: Constitution-Making and End of Empire] It is a very detailed account of negotiations and it comes through in that book. We all know that Kenyatta accepted this, fully intending to demolish it, which he did on the first anniversary of independence.
SO: So there was no moratorium on changing the constitution, as was the later case with Zimbabwe? There was no embedded clause proscribing constitutional change for a certain period?
YG: On the contrary, the entrenchment of devolution, and several other provisions, was very strong—requiring 90% votes in both Houses. The fact is that the most ardent supporters of devolution were the smaller indigenous communities who did not trust the larger communities, including Kenyatta’s Kikuyu. He gave every MP, and senators, large sums of money to buy their votes. 41 Senators voted to get themselves out of business, in return for a substantial sum of money, but were granted membership of the National Assembly, without any elections.
SO: So it became a unicameral arrangement.
YG: Unicameral. +Of course, after that all the functions of the Senate were abolished. But the point of my story is that Somare accepted Philip Ndegwa’s advice. He didn’t consult any of us. I was not physically in the country then. People were outraged. Not everyone, but in Bouganville particularly. Eventually it led to secession by them.
SO: Sir, had the draft constitution been published before it went to the Constituent Assembly?
YG: Oh yes. It was published. It was debated in the Constituent Assembly.
SO: Was that standard practice? That a draft would be published and go to a Constituent Assembly?
YG: Well, there are different ways but that’s probably the most common one. It was published and made available to everyone. We went round the island. We talked to people. We wanted to know what they were thinking. Somare consulted few members of the Constitutional Commission and to everyone’s surprise, introduced the motion to delete devolution. I talked subsequently to the Ministers and Father Momis, who was the de facto Chairman of the Commission – they were all surprised because [the] next day, when at the very end of the process, Somare introduced a motion to repeal the entire chapter and had enough votes. Then Bouganville said, “Okay, if that’s what you want, we’re leaving” just before independence. They declared secession on Independence day, led by Momis, who was the father on the constitution, we all acknowledge him as that. Some people were killed in Bougainville, by the police, sent from Port Moresby. It became very nasty. Then I was asked if I would return and help to find some settlement, because somebody like me was seen as neutral. I had become very close to Momis and have continued to be very close to him. So I mediated and persuaded the National Government to accept to restore that chapter.
SO: Sir, this really was conflict resolution?
YG: It was conflict resolution. Yes, absolutely.
SO: How did you go about that, Sir, because…excuse me, but you’re a Professor of Law…?
YG: Well, that’s a good question [laughter]. It was the question of trying to stop secession because they were afraid these other island groups would follow Bougainville’s example. I mentioned earlier a politician by the name of Kaputin, who was the other major champion of autonomy and wanted it for his own area. He and Momis were also national figures, both Members of the Parliament. Kaputin was a Minister and John Momis could have been but he chose not to at that stage, so they were quite important people. Then I got the Australians to put gentle pressure on both sides. Eventually they agreed to set up a negotiating process with delegates from the two sides, with lawyers. I was first asked to be a mediator, but as the negotiations started, Bougainville had no lawyer to speak of and the Government had quite senior lawyers. Momis asked me if I would agree to be their advisor. I said, “Well, it’s a bit difficult. We have started the process but we haven’t gone very far and I can see that you do need backing of your legal services, but this is a matter for Somare and you to work out.” So they met and they asked me to come with them. I said, “I have no objection if you are agreed and I don’t have any secrets that I’ve taken from the Government, which would then disqualify me.” I said, “I don’t see any conflict of interest.” So that was agreed. I essentially became negotiator for Bouganville. The Government, of course, had economists and civil servants, and there was hardly anything on the other side.
SO: I was going to ask, “What was your administrative backup?”
YG: Oh, very little. But fortunately, all the people we were negotiating with were sort of friends because the time I had spent there working, I was seeing senior civil servants, economists because I needed to know more about the country. We were doing the finance chapter. I needed to know quite a lot about finance. We were dealing with land issues. I had to talk to the Ministry of Lands. So by the time the negotiations started, I knew most of them quite well and became good friends with them.
SO: The country would have had a relatively small pool of civil servants.
YG: Yeah. So it was, on the whole. We did resolve differences and six months or so later the first constitutional amendment was approved in the form of a long chapter.
SO: So devolution was reinstated.
YG: Yeah. Momis continued to be in Parliament and continued to work in Port Moresby, though Bougainville began to set up local assemblies and government.
SO: Sir, were the Australians providing a degree of diplomatic support and logistical support throughout the negotiations?
YG: Yes, they were and they were putting gentle pressure on both sides to compromise. So that was my role. Then I was asked to – by this time, I had left Yale, and was in Uppsala, Sweden – they asked me if I would take six months off and come and help to implement the constitution, including, particularly, devolution. I suggested that they set up a ministry of devolution and, under that, a special sub-unit with responsibility for implementation. I worked de facto as the Chair but I didn’t want that. I wanted a local person to be chair. I worked the next six months setting up the whole system and I’m glad I did, because there was stiff hostility to it from some mainlanders.There was also lack of technical knowledge. Most people had very little relevant education. I asked Somare, even in the very beginning that I would like to work with one or two young lawyers so that they would acquire knowledge and experience of the constitution and the background to its various provisions, minimizing reliance on foreign lawyers. Somare nominated Bernard Narakobi, who died recently. He became very distinguished: he became Chief Justice, then became Attorney General, then was High Commissioner to New Zealand. When I was working in Vanuatu, as it was then the Condominium of the New Hebrides, I suggested they should get this gentleman to help them because he’d gone through the whole process with me, and they did invite him. He did a good job. I wanted a Pacific Islander, so the leaders of the New Hebrides would feel empowered, and appreciate that a Papua New Guinean had helped them with the constitution. So I was very pleased when he came, and we overlapped. I would go back to do my teaching and he would stay on for a while.
The last time I met him was about eight or nine years ago, maybe less. I was invited by a university in Auckland to give some very distinguished annual lectures. Then the Governor General invited me to spend two days with him in Wellington. I knew before I went that Bernard was the High Commissioner and we would meet.
SO: This is fascinating: there you are, as a Kenyan professor of law working as an autonomous diplomat, drawing upon this global network of academics and knowledge. It seems this was not simply within the Commonwealth. It goes beyond that. And you were acting as a very important resource for developing countries moving to independence.
Another specific dimension to your work was the operation of the Kiribati Constitution provisions for the Banabans.
YG: Yes. Well, that wasn’t my most important. My most important work was in Fiji and Solomon Islands. Solomon Islands was quite a big and demanding assignment. I was asked to advise the local political groups in their negotiations on independence with Britain. I was the main advisor—indeed I was the only advisor. At first the leader of the opposition refused to accept me as a general adviser, saying I could not advise both him and the Chief Minister. But after a while he accepted my credentials as an independent adviser, committed to the cause of independence and able to stand up to the pressure from Britain. Indeed at the final session of the Legislative Assembly on the adoption of the constitution, he paid high compliments to me for my work, saying that I united the country which was torn bitterly before my arrival. I was sitting in the public gallery when he said this; I was deeply moved.
At that time, I had nothing to do with the ComSec except, of course, they wondered if I could do a periodic briefing for them. At that time, Solomon Islands was, of course, British and it was the British who approached me and asked me if I would [assist]. What happened was that Britain, at that time, wanted to get out of the South Pacific. They seem to have had enough colonialism. In the Solomon Islands – like most countries that I worked in – there were deep divisions on whether they wanted to be independent or not. Britain wanted to push them towards independence. So they asked local people who they would like as adviser and they consulted the Papua New Guinea prime minister who recommended me, saying I had done a good job there!
SO: It’s interesting that Britain should be pushing them so, rather than allowing these small islands autonomy with free association, say – as the Cook Islands and Niue have with New Zealand.
YG: I think there was a feeling that there was little purpose now in continuing to possess colonies in the South Pacific, as Australia would take care of strategic matters and issues of interest to Britain. At this juncture I dealt a lot with the British Foreign Office and at the same time I was advisor to the local groups. The ODM [British aid agency], whatever it was called then, was paying my fees and expenses. By that time, I had started teaching at the University of Warwick. Solomon Islanders were deeply divided on independence issues. So I worked hard with them to build some consensus between their leaders, as later I did in New Hebrides (now Vanuatu). They trusted me, not associating me with Britain, but ‘a Third World person’. In most places I worked in the South Pacific, a very important role has really been as a mediator. This relates to your question earlier: “you’re a lawyer, but helping in mediation.” As a constitutional lawyer, I was familiar with various forms of structures of the state and was able to make proposals to narrow their differences. There was a lot of bitterness between the Leader of the Opposition and Chief Minister. So I realised that I really had to get them together before the negotiations with Britain. I said, “You should negotiate as a united people. If you are fighting yourselves, Britain will play one against the other so you have to do that.” And I worked on it, and worked on it. I would wear slippers and go to the Leader of the Opposition. I said, “I’m coming home to you. Do you have a free moment?” They liked that. For them, I was not a pompous civil servant coming from London. So I was able to establish a rapport. I was able to travel through the country, but not as extensively as in PNG. I accompanied their delegation to London twice, for negotiations with the British government. The Solomon Island constitution was very much my work—especially also because I got on well with the people in the British Foreign Office. Who some time later gave me a CBE!
SO: Sir, did you go in with a constitutional template of what would be appropriate? Or were you really responding with what you thought would be appropriate in each separate instance, given the local environment?
YG: I was partly responding to the local environment. A committee had been set up just before I went there, for consultation with the people, going round the country and talking to the people. I had access to the summary of their meetings and tentative conclusions/recommendations. I began my work by looking at that and commenting on the draft as well as refining it. They set up a Parliamentary Committee consisting of both sides; and I spent a fortnight or so with them, just going through what a constitution consisted of. Very basic things, though some of them, senior civil servants or officials, were quite knowledgeable- not just people from the village.
Then we looked at other examples. Of course, the Foreign Office had a lot of experience of independence colonies’ constitutions. I myself had been studying independent constitutions of East Africa. But I would do it very differently today, but if you look at the Kenyan Constitution of 2010, that will give you an idea of my kind of a constitution today. But that was a more standard constitution. On the other hand, the Solomon Islands consisted of, at that time, 300,000 people spread over 11 islands, or 11 archipelagos you might almost say. There are these constraints of resources, and one has to adjust to that.
SO: Were you supported by the Legal Affairs Division at the Secretariat at all?
YG: Not really. By that time, I’d got to know them, the Director from New Zealand, Jeremy Pope and the former Attorney General of Western Samoa, Tuiloma Neroni Slade. Slade later became Samoa’s Ambassador to UN. He and I became quite good friends. He would come and stay with us weekends in Warwick. He and I were both involved in Kiribati.
SO: Was this over the question of rights for the Banabans?
YG: Yeah, it definitely was. The Banabans were a group living on Rabi Island where they have been relocated.
SO: In Fiji.
YG: I went to Banaba/Ocean Island, their traditional abode. It was now like a lunar landscape. The British Mining Commission had take off the phosphate but they had restored nothing back as they were legally required to. Their agriculture was destroyed. It was impossible to go on living there. One solution – this was right before (Kiribati) independence – was to buy an island in the Fiji Islands and give them the option of moving there. We also visited them there.
SO: But, Sir, on the question of the Banabans: the British had relocated most of the population in 1945. As you say, the British phosphate company had essentially stripped the island, and it was a question of right of return and compensation?
YG: Yes. Well, they could, of course, stay there. There was some compensation which they used, oddly, to buy big property in Melbourne. It went to the Kiribati Government rather than to Banabans, but I think they got a share of it also. Then most of them took the option of going to Rabi in Fiji. Some stayed on. I think what they wanted was to maintain their links with their traditional homeland, because of their strong sense of belonging to the land, as you know is the case with most pre-industrial societies. So somebody in the family stays there and then after six months, somebody else would come from Fiji and this chap would then return to Rabi.
The constitution of Kiribati, with which I had nothing to do, had provided in a separate chapter for the rights of these people. It had granted them equal rights and special programmes and so on. It was also agreed that, so many years after independence – maybe it was 5 or 10 – that there would be an independent review of those constitutional provisions to see how far the Government has kept its promise. Is there some new kind of assistance Britain and the Kiribati Government should provide for them? So I was asked by the ComSec if I would join a three person panel to investigate the situation of the Banabans. By then I had already done various consultancies for the Comsec. The original work I did with ComSec was when Ramphal was the Secretary General. Then it was the Nigerian Chief Emeka Anyaoku. The former Chief Justice of Nigeria was to chair the Panel. Neroni Slade was made Counsel assisting the Panel. We had rather judicial type of proceedings, to ensure people came and were able to make their presentations, when Slade would brief them and pose questions. So it became a very formal enquiry. Then we wrote our report. I basically wrote it and worked closely with Neroni. Our conclusion was that though promises had been kept by the Kiribati Government and British Government, there was clearly more to be done. Some parts of the island were also not that well off. We did make four or five recommendations which, I think, were accepted, largely. So that was really all I did there.
SO: Sir, your longest involvement then seems to have been with things Fijian in the Pacific, dating back to 1987.
YG: It was after the first coup, yes. Before that, I had worked in Vanuatu and that was also a very critical role. The French and the British were there.
But let’s go to Fiji. I hadn’t really had many contacts in Fiji. Whenever I was going to Pacific Island states, I was almost always routed to Fiji on the international flights and then pick up a local flight. Then I would sometimes stay for one or two days, when I established some contact with the university.
SO: The University of the South Pacific?
YG: Yes. There’s a New Zealander who died recently, Ron Crocombe. He ran the Institute of Pacific Studies. I had a six months’ visiting professorship when I got to know more about Fiji. My contacts at that time were almost entirely indigenous Fijians. Then when the coup took place in 1987, I became very interested in Fiji’s constitution. My project for the University of [the] South Pacific was a training programme for senior lawyers and public servants in senior legal and political positions. Apart from my own research, I ran a training programme because a number of new constitutions were being established and others were on the way. It involved training new Attorneys General, senior lawyers, public servants. It was a South Pacific project including Micronesia and so on. I edited a book about the constitutions of the region, in which about half the chapters were written by me. When the coup took place, I was back at Warwick and I got a phone call from a former employee of the ComSec who set up the Commonwealth of Learning in Canada. He was from the Caribbean, of Indian origin. He worked for the ComSec for a while and they set up this institute of open learning. Then he went to Fiji as the Vice Chancellor of the University of the South Pacific, so I had met him a little bit at that time when I had this spell at the university. Then one day, after the coup, he rang me and said that Prime Minister Mara would like me to go to Fiji and help with constitutional issues. Before I could say anything, he said, “Don’t worry. We’re going to pay you very well. We are going to send you a first class ticket. I have already negotiated a lot of money for you from ComSec” and so on. I said, “Well, my question is what’s happening and what is my role?” Because I was afraid they wanted me there to and “fix it,” There had been some cases where the courts in other countries had accepted the coup as lawful. Mara’s expectation was that I would help the new regime to achieve a similar status. I had no intention to help them “fix it”—and expressed my willingness to go to help with the return to constitutionality. I suspected that Mara was in part responsible or the coup—it was not his doing, but I thought he was behind it. That person was Sitiveni Rabuka. So I said no. Then we had two or three more conversations and exchanges. I said, “No, I’m sorry, I don’t feel comfortable with this idea.” About a week or so later, Bavadra and his Attorney General, an Indo-Fijian politician…
SO: Jai Ram Reddy?
YG: Jai Ram Reddy. Exactly. I read in the newspaper sitting in Warwick that this group was in London to meet the Queen, who was after all the Head of State of Fiji. The British Government wasn’t so keen for them to come to London and even less keen that he should see the Queen. So they never saw the Queen, but met her Private Secretary.
SO: Michael Shea?
YG: Yeah, maybe. I wasn’t in that meeting. What I did was to call the Foreign Office, because I had friends there by then, having worked with them on some situations. I asked them if they knew where the Fiji delegation was staying. They gave me the name of the hotel, so I rang the hotel and told the receptionist I want to speak with Mr Bavadra (whom I had not met until then). He came on the phone and I introduced myself. He said, “Well, we know your name and we know that the Government tried to get you.” I said, “Well, I have said, “No” but can I do something for you while you’re in Britain?” And they said, “Well, we are waiting to see the Queen. Two days we have been waiting.” I said, “I’ll be happy to come to London to meet you, just to chat with you if you want me to.” So he said, “Wait a minute. I’ll give the ‘phone to my Attorney General.” Then Jai Ram came on the phone. It was the first time I had contact with him. He said, “Well, it would help us if you came. We don’t know what you can do. But we are very confused now.”
SO: Yes, I think they couldn’t even get into see the Commonwealth Secretary General.
YG: Yeah, that’s right. I went there, I think it was the same day or next day. Chaudry was there, Reddy was there, as were Bavadra, and two or three senior Fijian Ministers. They said, “We have been waiting and we haven’t seen the Queen. We have seen the Private Secretary. He said the Queen is very busy. We haven’t had much contact with the Foreign Office.” I was outraged when I heard that. I said, “Well, let me know…I can’t do much really. I have friends in the Foreign Office, but this kind of decision is taken at very high levels and they can’t do much either.” So then they went back to Fiji and I said, “Well, try to talk to Mara and see if you can have some dialogue with him.”
They returned home and I think they did see Mara. Mara also was finding the situation uncomfortable. They rang me and told me that they did have some discussions with Mara and there was a possibility of negotiations between their party and that of Mara. They wanted me to go to Fiji to advise them—within a week. I said, “This puts me in a difficult position because if Mara or his Permanent Secretary, that ComSec man, sees me in that room they’ll be furious. I say no to them–then I come as your advisor.” They said, “Well, what shall we do?” I said, “I can give you advice but I’m not sure taking me to the negotiating room is the best idea.” And they said, “Well, we really want to talk to you. Please come.” So I said, “I’m happy to come, of course.”
I flew to Fiji; there were soldiers everywhere. Bavadra had said he would send some people to meet and drive me to the West where Bavadra and several of his colleagues lived; it was, as it were, their part of Fiji. I could not work out who were there to meet me—and to be frank, I was quite nervous; and instead continued the flight to Suva, the capital city where the government had firm control. I knew where Bavadra lived, took a taxi there. His wife was there. She said, “They’re all waiting for you in the west.”
SO: [Laughter] Where you’d just flown from, having come into Nadi.
YG: Yeah. Because at Nadi I could not see any one to meet me.
SO: I was going to say, it’s not that big an airport [laughter].
YG: I then, in the end, said, “Well, maybe they’re waiting there.” I had a difficult decision to make. I didn’t have phone numbers or a mobile.
SO: [Laughter] Did you then have to fly back to Nadi.
YG: They said, “Just stay there. We are sending strong bodyguards to pick you up.” The soldiers didn’t know who I was. I could be a tourist, but if Rabuka had known, or Mara, I may have been in some trouble. So I stayed with his wife, who made tea for me—with biscuits. Then after about a few hours, a big van rolled up, with young, tall people like a rugby team.
SO: [Laughter] It probably was. Maybe it was the Sigatoka Rugby Team, or something like that. [laughter].
YG: We then drove back to the west. Every few miles there was a road blockade and the soldiers saying, “Who are you?” and asking them some questions. Anyway, we got there. We had two or three days of meetings in Nadi with the ex-Cabinet. The meeting with the other side was to be at a resort not far from Suva.
SO: You’re thinking of Deuba?
YG: Yes. There is where the meeting was and the agreement was called Deuba Accord. So what we decided in the end was that I would not go into the chamber with them, but we had worked our strategy and argument by then. Each time they wanted to talk to me, they would ask for a tea break. I had told them that it was perfectly proper in negotiation to say, “We now request a break. We’ll come back in two hours.” If they felt they needed to talk to me, they would do that; then they would come to my room. I couldn’t even leave my room lest I was seen – because most people on the Government side knew me during my work at the university and the then opposition groups…
SO: Professor Ghai, you were advising the Fiji Labour Party leaders then on a political accommodation with Ratu Mara’s Alliance Party?
YG: Yes… The idea was to restore democracy. Number one. Then ideally, reinstate Bavadra. Then have a list of issues that they wanted to discuss, but which they would as the dominant member of the Government.
SO: So did you address the issue of the Great Council of Chiefs?
YG: Well, I said let’s avoid it. And then I said what might happen is that, Mara would suggest to you a government of power sharing. Then you take it, or not take it, depending on other terms of the agreement. It has to be a temporary arrangement and there may be some advantage in it for you. But insist, I said, that Bavadra is the Leader of the Government, and not Mara (and the exclusion of Rabuka). Mara thought he would be Prime Minister. Well, that was not subject to negotiation. That was agreed. As agreed in the negotiations, they would both be called Prime Minister but First Prime Minister, Second Prime Minister. Something like that. I have a record somewhere, but anyway, that eventually agreed. No role for Rabuka was provided. Remember, the President was also presiding at this meeting and seemed anxious to reach some settlement. As the High Chief of the community to which Rabuka belonged, he was able to dictate to Rabuka (who was not invited to the Deuba negotiations). It seemed as if politicians had got the better of the military.
The Deuba Agreement provided for the long term settlement of the differences between the parties and a review of the constitution (which was tilted in favour of the indigenous Fijians. They were anxious to find a mediator. Bavadra wanted me to be that but I told him that I was too committed to his party and position, but suggested a former Chief Justice of Tanzania, Georges, a native of the Caribbean islands.
On the successful conclusion of the negotiations, the President held a reception that night. Bavadra and Reddy asked me to accompany them to the “celebrations.” But I was still nervous about running into Mara. They thought that Mara had returned to Suva and urged me to join them—which I did. It was a great party; everyone was in a good mood and a lot of the local brew was consumed. As I was flying back to England very early the next morning, my hosts had arranged for a car to take me to Nadi. I would sleep there, then early in the morning would go to the airport. Later I received a note from Fiji that everyone had a good time and the mood was convivial. But alas soon after I got back to Warwick, Rabuka had done another coup and assumed power.
SO: He had launched the second coup.
YG: Yes. We suspected that Mara might have had a hand in it. The ‘ex-Prime Minister’ as I would call him, Bavadra, rang me and said that it seemed as if I would have to be a long term adviser to them. On the breach of the Accord, I advised him to tell Mara (who clearly had considerable influence on both the President and Rabuka) that he had to fulfil his part of the Deuba Accord. Unfortunately Bavadra died soon after this. Tensions between the two parties, Bavadra’s Labour Party, now led by Choudhry, and Reddy’s National Federation Party—relations between Choudhry and Reddy were for a long time tense. Although the coalition broke up after a short while, I persuaded both Reddy and Choudhry that the two parties should continue to work together on constitutional reform as one group. I made it clear that I would find it hard to advise one group, as I had worked with both parties. They agreed. In practice I spent more time with Reddy and his party, since I was closer to Reddy—and we were both lawyers, and the issues to be negotiated were largely legal. I did make efforts to work with Choudhry (the secretary of his party and I got on very well). And I have to say that on questions of constitutional reform the parties were largely united. Mara was not too happy with my participation, questioning the role of foreigners, and so, continuing the Deuba meetings practice, I tended not to attend inter-party meetings.
The first major task was to agree on the modalities of the negotiations. I proposed that since there was so much distrust between the parties and their leaders, that an independent commission should be set up, with clear terms of its functions and responsibilities. And since there was so little trust between the parties, and indeed by then, between communities, I proposed that the commission should be chaired by an outsider. Mara resisted this strongly and the other party would not proceed without an independent chair from outside, with a distinguished… The stalemate lasted for six months.
Reddy took a firm position on this—the chair must come from outside, be person of great integrity and without previous engagement in Fiji. Then Mara proposed a former, British administrator, who was rejected by Reddy, claiming that he had been anti-Indian when he worked in the colony.
I contacted a number of in New Zealand and Australia to see if there were suitable candidates there. And one friend from New Zealand wrote to me and said, “Well, our former Governor General will be a wonderful person. Sir Paul Reeves had also been head of the Anglican Church, before he became the Governor General. And he’s indigenous, he’s Maori, so they can’t object.” I then wrote to some other friends, got some feedback on him and he seemed a very suitable person.
After six months of negotiations on this one point, Mara agreed to have Sir Paul Reeves (but gave him cold shoulder throughout the Commission’s tenure). The Commission included one nominee each of the two parties (Mara nominated a previous senior politician in his party, and Reddy an academic (historian) at ANU, Brij Lal, originally of Indo-Fijian origin). I thought that this was a fair composition, though we worried how [they] would get on together—as it happened, they developed a warm relationship and came to a consensus. Reeves told me that it was a pity that I was unable to advise the commission due to my role with the other party. I know Brij Lal as an academic. So I prepared the submission for what was increasingly becoming the Indo-Fijian party (compared with the more racially mixed party under Bavadra). It took some time to develop a consensus between Reddy and Choudhury. In the end we produced a very lengthy document (Towards Racial Harmony and National Unity). I was then asked to present their submission, which I thought was a bad idea. Reddy would have been the ideal presenter, the most distinguished lawyer in Fiji and a good orator. The compromise was he would start by giving a summary of our proposals and then I would take over to go through the detail. He spoke for about 20 minutes, and I took about a couple of hours, followed by questions from the Commission. The session lasted until lunch time, watched by a large audience.
Later the Chair of the Commission told me that they wished they could adopt all our proposals, but that would be resented by Mara and his party. The Commission’s report was itself very lengthy. The report and recommendations were excellent—but too long which would have meant that not many read it. However, there was a useful and accessible summary.
When all the parties began to negotiate on the basis of the Reeves Commission, through a committee of parliamentarians drawn from both houses of the legislature, they decided to keep their advisers out. The time had come for horse trading. Consequently I decided to return to Warwick. When the negotiations were concluded, I received a long note from Jai Ram Reddy including the draft agreement and request to return to Fiji for consultation before the final discussion and decision by the Assembly. I read most of the draft on the long journey to Fiji. The draft agreement was without doubt a great improvement on earlier constitutions, with a clear orientation towards non-racialism and social justice. But there were several features which I feared would be unworkable.
SO: With your proposals for the draft constitution, were you addressing key issues such as access to land?
YG: Well, yes, everything. Access to land, the voting system, structure of government, human rights, everything. On land, in the end, we didn’t resolve the problems. I said to Jai Ram Reddy, for whom I was working very closely and was staying at his house, that we should try to resolve the land question. He thought differently, saying, “Land is a very complicated issue and it could tie us down for a long time.” By this time, he had established quite a good relationship with Rabuka. Rabuka had been full of contrition, saying, “It was a mistake on my part. I will seek forgiveness of Indo-Fijians” and so on. Saying that he had a good rapport with Rabuka, he thought that they would together win a majority and form a government. This was not to be so. Their parties did poorly. Chaudhry’s Labour Party got a majority and formed a government with the Fijian party which got substantial number of seats. The result was a surprise and a great blow to plans that Rabuka and Reddy made to move towards a non-racial political system.
The electoral result reflected the vicissitudes of the electoral system, which was designed by a US professor, a great authority on ethnicity, from Duke University who was on sabbatical in New Zealand. [Added after the interview: The new constitution did not last very long. The new coalition did not work at all well, leaders on both side were rather opinionated, with few reform initiatives. In the next elections, the balance between the two parties in the cabinet changed, with Chaudhry in the minority. It proved difficult to agree on the terms on which Chaudhry would join the government, as a junior partner. The new government was largely drawn from Fijian and European ministers. Eventually it was overthrown by the military which took over the government. Though its intention was to return government to civilians under a new constitution (and I was approached then to help with the drafting of it—but was unable to go there), in the end the military regime stayed on for a long time. When it did address the question of civilian rule, I was again asked if I would chair the process to make the new constitution—this time I accepted it and spent six month (in the first half of 2012) in consultations etc. before a constitution was drawn up.]
When I went back in 2012, that [the electoral system] was clearly something we had to resolve. We put a lot of effort into that. We arranged seminars for ourselves and leaders of organisations, including political parties. We talked to academics. I read books. I got to know a little bit of the problems. And again, we came to a very definitive solution, we had, I thought, a good scheme. I talked a lot with chiefs. I talked a lot with Indian businessmen. In fact I talked to all the key interests, including the Ministry of Indigenous Affairs. In the end, I thought we had got some sort of consensus. I was very much a pro-Fijian on this issue. I thought, “This is their land and the Government can’t just take it away, and give it to others. They have to be more involved, but there are also questions on the economy. Let’s look at creating a framework where everybody can take part. “Come, let’s do more negotiations.” In the end, our provision in my draft – they all call it ‘the Ghai Draft’ – was a consultative process to follow after the constitution within certain fundamental principles that we laid down. Again, postponing…but we had not that much time. About six months altogether for this huge process, which included other consultations.
The position taken by the Prime Minister and the Attorney General was that all land now belonged to the people. I said, “How can you get away with that? It’s impossible.” But this time I was not talking to the Government.
SO: I know, from looking at the news reports, that your relations did break down.
YG: Yeah, they broke down completely. But I had great rapport with almost every other group. So land has never been resolved, I’m afraid, and it’s going to be a continuing problem. I thought we had worked out something good and I took it to some experts. They said, “Well, it’s ambitious. It’s contingent on many circumstances, but this is the best thing we have seen on the subject.” Anyway, the land issue is still unresolved. If you read this blog by Victor Lal, called ‘Fijileaks’, there are a lot of stories about land being grabbed and so on, but he, of course, is a little biased about Brij Lal. But he is extremely well informed. He does all the written copy. He has a spy in every ministry! I’m very impressed by him [laughter].
SO: Well, he’s got a great track record as an investigative journalist.
YG: Yeah. He has been very good. He was, of course, angry when I took this post, but I said, “Well, I’ve taken this post because I’ve been given an open…”
SO: Sir, I think we should stop there, but thank you very much.
[End of first transcript part 1]
SO: Sue Onslow (interviewer)
YG: Professor Yash Ghai (respondent)
JG: Jill Ghai
Sue Onslow talking to Professor Yash Ghai at Senate House on Wednesday, 15th July 2015.
SO: Sir, please could we continue our discussion about your particular roles in helping to reframe constitutions in East Africa? I’d be very grateful for your insights and comments upon your work there. You mentioned that you had become involved in the revision, or the re-drafting, of the constitution in Tanzania, during the time of Julius Nyerere. What had been the political issues prompting this?
YG: Well, Nyerere decided to turn Tanzania into a one-party state. He provided quite sophisticated explanations for moving to a one-party state: primarily, that 90% of the people in Tanzania voted for TANU, his party; the Ministers and other MOs came from his party. He felt that on the assumptions of multi-party system, they all had to be supporting the Government. So there wasn’t really much open debate. Whatever views people had they might express in party meetings, but they wouldn’t in public. He said if they adopted a one-party state then they could have open meetings, the party could be criticised, ministers could be changed, because they did not have to worry about an opposition party taking over power. The other justification was that the one party was more akin than multi-party system to African traditions: ‘We are used to working together, sit under a tree and talk until you agree.’ That kind of thing. The party endorsed his proposal and proceeded to set up a commission, chaired by the Vice President Kawawa. And then I got a letter from the Chair saying that the President would like me, and a colleague of mine, Patrick McAuslan, who died last year to make a submission on how, given a one-party system, one could still have open debates and discussions. So we did that and that paper actually has been published now, some years ago. We recommended several things, but two or three things that we recommended were adopted. One of the recommendations was the establishment of an Ombudsman, leading to the first Ombudsmen in Africa. And it continues now, and still enjoys considerable credibility in society. The second thing we proposed was to have genuinely competitive elections. We therefore suggested that the Electoral Commission in conjunction with the party should nominate three candidates. But then there should be free debates and that the Electoral Commission should be given enough funds to hold town-hall kind of meetings. So the campaign would be facilitated by an independent Commission. They would have meetings where people could come and ask questions. They would publish and print their manifestos. The idea was that a richer member shouldn’t be able to have an advantage over others; we wanted a genuine debate and the resources of candidates should not determine the election results. The proposal was accepted, but the number of candidates was reduced to two. This system was use in about three or four elections. Then when Nyerere resigned, at some stage they changed this to a more traditional electoral system.
SO: Excuse me sir, what do you mean by a more traditional electoral system? Do you mean plural politics?
YG: Plural politics and your own campaign, you print your own election material.
SO: Thank you.
YG: We were also asked, on another occasion, to recommend how freedom of expression and liberty could be secured even though there was detention law under which a person could be detained without a trial. We were very worried about the law—especially the possibility of abuse. There might be some inquiry, but there was no open trial. I think that some of the opponents of the regime had been put away. Nyerere’s line was that while the Western view was that if there were 100 accused persons, it was important that no single person should be detained without trial. In other words, there should be a presumption of innocence all the time. He said, “But that doesn’t work. We don’t have the apparatus.” The British view was even if one person in a hundred was arrested and put away, that was worse than 10 people being released, though they were guilty. He said, “We have a different philosophy. We feel we can put some innocent people in jail because we don’t want to sabotage our new nation.” etc. We did a paper on that, which was not in the Constitution. That was used to revise the law, which was saying you have to build-in mechanisms where there is proper inquiry where they have access to their lawyers; and, if you don’t want to go to court with formal rules, with a bias in favour of the accused, you can set up a Tribunal Commission of Enquiry. But otherwise there were enormous risks; and then there must be publication. They didn’t even publish who had been arrested. (Kenya had the same rule, later on, and I became victim of that.) So that was accepted.
SO: So this discussion was going on in the 1960s, or in the early 1970s?
YG: In the 1960s. ‘65 was when we were asked to do that. Democracy was shrinking. Independence was of course very democratic, with a constitution, but which was completely unrelated to reality. The British had ruled by the whip: with the army, police – not to protect people – but to beat them up. That was the case. Then suddenly to expect the whole system to flourish, to blossom…
SO: Constitutionalism on the Westminster model, as you say, was alien to the political culture…
YG: So those constitutions were extremely democratic, but in Tanzania, the only country I know in the region, which was really able to argue against the British [model]. “We don’t need a Bill of Rights. We have a traditional system, we have openness,” and Britain agreed. Nyerere was such a dominant leader, so there was no opposition saying, “No, no, no, wait a minute. We want a Bill of Rights.” But in other countries, Uganda, Tanzania, Zambia, Malawi, everywhere, there was a Bill of Rights based on the European Convention, which your government is now trying to destroy [laughter].
YG: These were some of the things I was involved in, in Tanzania.
SO: But you’d been involved recently, advising on the draft of the new constitution of Tanzania, just to bring it more up to date, with the Chairman of the Commission…
YG: Yes. As you know the Commission was set up three years ago, I guess now, by the Government, to review the whole Constitution. There’d been so many changes since they did the last constitution. It had become a multi-party system; the relationship with Zanzibar had become a bit more fraught, and they just felt that it was time to review it. They set up a Commission consisting of an equal number of members from the mainland and from Zanzibar. The Chair, Joseph Warioba (who had been Prime Minister at one time, was a judge, then Attorney General, so a very eminent person) asked me if I would spend a day and a half with them, first answering any questions and then maybe discussing the process of constitution-making, particularly consultation, and issues of electoral system. They of course had already, by that time, seen our Kenyan constitution. So I spent a day and half discussing the questions they had and gave them my views on different matters, such as the relationship with Zanzibar, because I had been writing a paper on that, anyway, for another purpose; and the Bill of Rights and Participation. I gave them of course a copy of our Constitution, and they also had a conversation with Chief Justice Willy Mutunga. If you look at the Tanzanian draft Constitution it draws very heavily upon the Kenyan Constitution. But as you know, the Government has rejected it, more or less.
SO: Please, if I could ask you now about your involvement, your ‘stint in Kenya’ as you say. Obviously your professional and personal experience in Kenya is considerable, having been born there, but then you spent time in exile. How were you invited back? Were you based back in Nairobi by the time you were asked to assist with the redrafting of the constitution?
YG: No, not really. I was teaching then in Hong Kong. I taught at Warwick, and then I moved to Hong Kong because I was very interested in the change of sovereignty and the basic agreement which had been made. At the University of Hong Kong a very rich man, funded a Chair on comparative public law to promote discussion and debates on Hong Kong’s forthcoming status as part of China but with a considerable degree of autonomy or self-government. British public law which was taught in Hong Kong provided little guidance on how the new constitution order would operate. I applied and was duly appointed the first Sir YK Pao Chair of Public Law. When I was approached to be the Chairman of the Constitution of the Kenyan Review Commission, I had actually been teaching in Hong Kong but was on that occasion on sabbatical at the University of Madison, Wisconsin. The [Kenyan] Attorney General rang Hong Kong to talk to me, but discovered that I was in Madison and contacted me there, asking me if I would return home as President Moi had wanted an opinion on constitutional law. I said, “Well, I’ve been out of touch. Anyway, send me what questions you have.” But he said no, they wanted me there in person. I was teaching two courses on a very intensive basis at Madison, because I didn’t stay the full semester time; and I said there was just no way I can be away for more than two days at a time, going to Nairobi from America.
SO: It really is rather a long trip [laughter].
YG: Instead, he showed up at our door, and stayed three days, persuading me to return to Nairobi. It turned out that the President wanted me to chair the Kenya constitution making process. Wako had been my former student in Dar es Salaam. I said then in the end, “Okay, I don’t want to take any commitments. I want to consult my friends, especially civil society. Why is a government now starting this process?” Of course this was after the end of the Cold War so pressure was building on African states to democratise. So that was one reason why in Kenya, there was a lot of pressure from Britain and United States. I said I would like to go back for a short while, talk to different groups, see the President and then I would let them know if I will take it or not. So I did that. There were two problems: one was my own decision. Secondly, what had happened over the years, civil society had built certain competence and Moi kept on postponing constitutional reform. He had said, “Well, I’ll bring some British and American and Indian lawyers. They’ll write the constitution. We don’t have any expertise here.” He just kept postponing, so civil society set up its own commission under the chairmanship of Oki Obama, a very good lawyer.
So I thought if the Government was going to set up a Commission, it should be merged with this one. Otherwise we would be in constant fight, and no party will have a majority to change the constitution. I said I would only take the job if I was able to bring about this merger. In the beginning President Moi was very upset. He said, “I didn’t call you for this.” I said, “I explained to you that I was coming on an exploratory trip and I wanted to talk to you, see your ideas and I wanted to suggest some kind of a process.” So anyway, my arrival had been announced in the media, that he had invited me; and he had indeed invited me. Then he was a bit cross. I was prepared to walk out. So he then said, “Okay, you try to bring everybody together.” Then my civil society friends gave me some conflicting evidence: “They’re using you and you will be co-opted. I said, “No, this is the best chance we have had since independence to make a change.” Consequently in the end I decided to talk to everyone important. I talked to church leaders, I talked to religious groups that formed an association called Ufungamano. I was given the mandate to negotiate with civil society. So I was seeing these bishops and cardinals every second day, then rushing to the Government side, and they wouldn’t come together. They would not sit together; there was so much anger, bitterness and nastiness.
I succeeded in bringing them together, after a lot of effort. Within both circles there was deep, deep anger by some at us, but I brought them together and Moi had to accept it. Then I went back to Hong Kong.
SO: So did you have any support from Chief Emeka and the Commonwealth Secretariat in any of this work? Or was this very much you flying solo?
YG: No. It was very much a local thing. It had nothing to do with ComSec. Then I took two years’ leave from Hong Kong University to go to Nairobi, in December 2000. And that’s where I started this process. I was first Chair of the Commission and then Chair of the Kenya National Constitutional Conferences (often referred to a Bomas hecause of its venue). Two years were extended into nearly three and a half. And then at that time there had been elections. I had advised Moi to give us enough time to complete the draft and to take it to the National Conference. He said, “Well, I have to stick within the current Constitution, because I don’t want to be accused that I’m extending the life of Parliament because I want to stay on as President.” I said, “No.” I gave him an interpretation of the law as to when elections have to be held. Traditionally they were held in December. There was no reason for that, other than maybe it was holidays. When Parliament met for the first time after elections, they had five years from that date. So I said, “You can go until March. That’s all we need. We will finish it by then.” He agreed and then we informed the Constituent Assembly. We had done our own draft; it had been publicised, and people were reading it and commenting on it, and then we invited all the members to Nairobi for one week of briefing, before we started the formal work. Everybody had come and on the Friday we were supposed to start giving them introduction to the draft, asking questions as to the draft, they could start reading it, thinking about it. We brought experts supporting us, experts opposing us, so they could get all the perspectives.
Well, at lunchtime, my secretary rings me and says, “Have you heard the midday news?” I said no. She said, ‘The President has dissolved Parliament.” So we had to go on recess, because MPs were also members. There were members of the Assembly there, we wouldn’t have a quorum. So we suspended our work until after the elections. And in the elections Moi couldn’t stand again; he had enough terms. Then Kibaki won. Kibaki was my great supporter, because in the process Moi and I had a lot of bad [feelings]. He was angry, in public and in our meetings. He tried to undermine me in all the ways he could do. And Kibaki would have a press conference to defend me. This happened three or four times. And Kibaki said, “Ghai drafted this wonderful [document]. We will take it as it is, without any change.” But when he became President he reneged on that, because we had provided for a Parliamentary system, rather than a Presidential system, and he wanted himself to be the President. We had the British-like system where there’s a lot of accountability and you can’t just do what you want, as Presidents often do. So he arranged a case – that is, we think he arranged a case – where the validity, legality, of the entire process was called in question, because there was no referendum. We never had a referendum, ever. No country in East Africa had a referendum. So I did a quick research on the Commonwealth constitutions at that time: 60- 70% of Commonwealth countries did not have a referendum. But, suddenly the courts said, “Well, how can you have a constitution without a referendum?” and they declared the whole process unconstitutional.
SO: So it was declared null and void, and swept off the table?
YG: Yes. So Kibaki continued under the old constitution. By that time I had finished and gone back to Hong Kong.
SO: Had you received vocal support from Raila Odinga, and also from Ken Matiba?
YG: Yes, very strong support from Raila Odinga; but of course at that time, in one sense, Raila was very close to Kibaki. Because Kibaki won the elections substantially, because of the Luo vote which Raila mobilised, and he was under the agreement they made. He was supposed to be a Prime Minister and Head of Government in Parliament. Kibaki reneged on that, which created a lot of problems in the Constituent Assembly, because Raila was counting on the very solid majority and they were split very badly. So then in fact Raila left the government…
SO: Excuse me sir, this was very much an internal Kenyan political discussion. Were there external Commonwealth elements…?
YG: It was very Kenyan. In fact this process was the most indigenous that I have worked in anywhere, I think. Every member of the Assembly was Kenyan, every member of the Constitution Commission was a Kenyan. We rejected money. Ambassadors used to ring me and say, “We have money.” I was very upset because they messed us up, they had money but we don’t want money, they kept on bringing money and the Commission wanted it, to pocket it or to go to abroad to study foreign systems. It was a very hard battle against the UNDP; who wanted to arrange foreign trips which I opposed. The head of one institution, which I don’t want to mention by name, came to see me and said to me, “Look, we specialise in constitutions. I have talked to some governments in Europe and they say “We can just take over and we will give you a Draft Constitution, like this turnkey projects.” And I looked at him and I said, “But I am a constitutional lawyer. I’ve written Constitutions for other countries. I don’t need your help.” He said, “Don’t worry, money is there.” I almost had to throw him out of my office.
SO: The arrogance of his attitude is extraordinary, and must have been deeply insulting.
YG: The arrogance, absolutely. Anyway, it was a very Kenyan process. We did consult some people when we wanted advice. We wanted very much to look at the Ugandan and the South African experiences. I had always been very inspired by the South African constitution so we invited a number of South Africans. We ran a few workshops for the CKRC and the Commission, mostly for the Commission, on the drafting process and we also, [involved] the person I mentioned yesterday in relation to Papua New Guinea, Professor Ron Watts. He is the only person who actually sat with us when we were discussing devolution and answered our questions. Otherwise there were seminars. I might ring them and say, “This thing has cropped up. What’s your experience?” and we found that very useful. But it was purely home-grown, the most home-grown I had been involved in. We had a lot of Kenyans who are educated and my deputy, who was the head of the civil society I mentioned earlier, he was a very bright public lawyer. So we felt we could handle it and if we need it, so many embassies came. “We have this great expert, we have this adviser” and I just politely got them coffee and showed them the door. So I am very proud of that, that it was such [a home grown affair], and we travelled round the country, twice: once to tell people about the process and the issues, and the second time to go and ask their views. We gave them enough money to meet periodically in the district to have their own internal debates. So Kenyans do feel very much that it is their document.
SO: So what was the eventual fate of that document? You said that Mwai Kibaki pushed it off the table?
YG: Yes, he pushed it out and there was still pressure for the Constitution from the people. So then what we did was to get the Attorney General to take out aspects of the Constitution that he did not like. Two things he particularly didn’t like (although there was other things too): one was the system of government. He wanted to retain the Presidential system. And the other was the effective removal of devolution, a system in which districts would have significant power—he wanted to retain the centralisation of power brought about under the regimes of Kenyatta and Moi. People did not like these changes, and defeated the revised draft in a referendum.
SO: The executive powers of the President?
YG: For us that was a critical issue. And secondly, he didn’t want devolution, which Kikuyus have always opposed. So that was done. These two things were taken out. There were a few other matters and it was rejected in the Referendum. I don’t know exactly why, I was not in the country then. But the one thing that people liked was the proposal for devolution. Some tribes had been victimised by Moi, or by Kenyatta and so on, so people wanted more powers at the local level. And over the years, even local government had been made ineffective, with hardly any funds from the central Government. So that was taken out completely even though they kept the title of the chapter called ‘Devolution’, there was nothing about devolution in the Constitution. So then they continued with the old Constitution until the elections of 2007. By that time of course Raila and Kibaki had become bitter enemies. Well, that’s Kenyan politics: today you’re in bed, tomorrow you’re in the divorce court, and the third day you’re back in bed. [Laughter]
You probably know what happened in December 2007, the rigging I’m sure. Kibaki was declared the winner. It was challenged by Raila. Then of course at that time Luo and Kalenjin were working together, and that’s when a lot of violence was used. I don’t know what the figures are, but a large number of people were killed, half a million were displaced.
SO: The official figures are over 600,000 were displaced, and approximately 1,200 killed.
YG: Over nearly half million, figures vary, but anyway then at that time Kofi Annan and other African leaders came and started mediating. And one of the terms of the Agreement was that they would revive what was called, ‘the Ghai Draft.’ But they set up a committee of experts – none of our members could be members of that – just to have another look at it and get some more views. This committee was given about a year, something like that, to review the Constitution, to consult people, to consult parties and then to present a revised version, if needed, to Parliament. That was done.
People often ask me how much of the draft that was given to Parliament, and then the referendum, how much was it the Bomas Draft, and how much totally new. I often say 80% is probably taken from our draft, but the 20% is the important part. Devolution was reinstated, in a slightly different format from what we would have done. They moved back to the Presidential system. There were some other changes too, I’m sure. So that was then put to a referendum and adopted on 27th August. Nearly five years ago now.
SO: Sir, please could I ask you about your involvement in the Commonwealth Human Rights initiative? I know that you are now Chair of the International Advisory Board? How did you come to be involved in CHRI?
YG: There were a number of Commonwealth-wide civil society institutions, which actually set up this body.
SO: Yes, I know there was a group of you. Richard Bourne has written on this.
YG: Has he? I don’t think I’ve seen it. I was, at that time, Chair of the Commonwealth Legal Education Association. So in that capacity, I became involved in setting this up. But I didn’t play any very critical role in this. And then when they set up their first advisory body, other people nominated people; two or three were co-opted; I think not every institution nominated their President, but they did nominate me. So I served for about two or three years on the board.
SO: Sir, in your view, what is the impact of the CHRI on Commonwealth diplomacy, on human rights discourse…?
YG: I don’t know, you probably know better than I. At that time we were very much setting it up. Richard and I have a little bit of a history. The very first report that we produced was largely done by [my wife], Jill and me, and that was quite influential. It was used in the heads’- meeting in Harare [in 1991], shortly after the report came out. We were in part aiming for that meeting. You should ask Richard, he probably knows a lot more than I do. Then somebody has written up, what was the title of that book?
JG: Put our World to Rights.
YG: Yes, Put our World to Rights. So I was told that that document summary was made available to the Heads of Government. They were impressed by that, and the Harare Declaration borrowed a little bit from that. One or two members were briefed in advance. At that time the Chair of the CHRI was a former foreign minister of Canada, Flora MacDonald, and through her we had opportunities to influence the Heads of Government.
SO: Sir, this was the report ‘Put Our World to Rights’, written by a non-governmental Advisory Group, chaired by Flora MacDonald, which reported to the Harare?
YG: Flora MacDonald was at that time the Chair of CHRI.
SO: Yes. I have a list here of the Advisory Group members: Flora MacDonald, Dr George Barton, yourself, Billie Miller, John Morton, Dr Beko Ransome-Kuti and George Verghese.
JG: The initial writing was done by quite a variety of experts.
YG: Yes, that’s true.
JG: You edited it.
YG: We edited it. We added things.
JG: They were quite distinguished.
YG: Then we were running out of time, so Jill found a very fast printer, ‘Fast Printers‘, in Hong Kong. [Laughter] We were in Hong Kong that time and he lived up to his name, as we said in the preface.
SO: Did you meet the heads privately, to put your particular views, or this was a written document?
YG: I wasn’t in Harare, but there was a delegation from CHRI, and I think they lobbied some heads. And having of course this Canadian Chair helped a lot.
SO: It would have done, as Flora MacDonald was a former foreign minister herself.
YG: Yes. But after that I’ve had prepared some other annual reports.
SO: You were also author of the report on Rwanda and Human Rights in the run up to the Port of Spain Heads of Government meeting?
YG: Yes, that’s right. I was asked by the CHRI Board if I would go to Rwanda. There was an Australian, or British, woman who was working in CHRI and she was supposed to help me, so she came too.
SO: The background of that was Rwanda’s bid to join the Commonwealth?
YG: And the question was whether the political culture, the political practice and governance of Rwanda met the extremely high Commonwealth standards of decent government [laughter]: which was a bit of a joke in a way. So then we went to Kigali. I read a bit about the Rwanda background. There was some quite interesting work by Belgium and French scholars. Then we went for a week to Rwanda and we met a number of people. The British, then Ambassador, now you call High Commissioner, and the Head of DfID. They gave us a lot of their time, but they were all apologists for the President. Then journalists, both BBC and foreign journalists and local reporters, and some Ambassadors and some academics. But everyone said: “Do not, please, mention my name. Do not quote me.”
SO: Oh really?
YG: Yes. Even the British High Commissioner and the head of DfID. They were helpful, they gave us some contacts and so on. But they were saying no. The other funny thing when we’re leaving the head of DfID said, “I told you this is all off the record so don’t mention me. But if you want to say something good about the country, you could attribute it to me.” [Laughter] Anyway, I got very quickly a sense of the place and I went to the BBC. They had banned BBC for the whole week because there was some programme in which some critic, a local person, had spoken something very innocuous about the President. We studied what he had said, but I can’t now remember. So for the whole week the BBC was not broadcasting, so they were very nervous but they did talk to us. Our conclusion was that Rwanda did not satisfy the Harare and other Declarations.
SO: I have a quote here: “an ill-advised membership bid.” That is what you concluded in your report to the Port of Spain heads meeting.
YG: Yes, it is a very detailed report, have you seen it?
SO: I have, yes. It’s available on the internet.
YG: I did a first draft, which was not as hard-hitting as the one that was published. Because what happened was, I was in London then. I don’t think I came especially for that, but then they organised a meeting and there was this Baroness, she was quite radical, then she became a member of House of Lords. She arranged a room in Parliament for our meeting. So we had a preliminary meeting, partly to get some feedback and we got about 50 people, including people from the Rwandese Embassy and the British Foreign Office and a number of people interested in Africa. Quite a few people, we didn’t realise then, were working for the Rwanda Government, like the Chief Government Scientist. So they became very critical of my report which had been distributed in advance. I was given about 20-30 minutes to explain, and suddenly this flurry of criticism came at me. Even the woman who had given us a room: a very nice person, I’d known her, not very well, but on and off for a while. They all said, “You’re being unfair. You don’t realise the difficulties they have had doing the wonderful things they have done.” And two people from the Embassy were very diplomatic. They said, “Professor, we know you’ve done great work in Africa,” then started to launch a swear attack on me: “What is your evidence? You’re making these allegations.” These were very senior British former civil servants, all advisers were getting huge fees from the Rwandan Government. So then I really got annoyed, very upset. I said, “Well, I’ve taken down your comments. As for evidence concerned, I have a lot of evidence and I shall put it in the Appendix to my report. Reports from UN and other sources. I will expand my paper, to give more details.” Which is what I did. And then you can see half of it is quotes from UN and other committees, allegations of corruption against the President, which have never been answered. I didn’t see these people afterwards, but it was summarised in one of the Kenyan papers; and again I was attacked by the Rwandan Government. And of course they were welcomed with open arms into the Commonwealth.
SO: Because of regional politics…
YG: Of course. But since then people have been telling me that, “Of course everything you said in the report has now been vindicated. All the evidence has come out. He can’t deny it, he can’t defend himself.” But then the other thing was that the [Rwandan] Ambassador in Nairobi, called a friend of mine and said, “I want to see Professor Ghai. Can you arrange a meeting?” So that was done and then he said to me, “Your report is unfair” etc. etc. This was, I think this was after the event. But he said, “My Government has asked me if you would agree to be a consultant to us on human rights.” [Laughs]. I looked at him, and I said, “Well, that’s very kind of you, but you don’t need me as a consultant. You have my report.” [Laughter]
SO: “You already have my reviews, on the record.”
YG: So I turned down this lucrative offer.
SO: Sir, please could I ask you your view of the proposal for a Commonwealth Human Rights Commissioner? This suggestion came out of the Eminent Persons Group. I know that obviously, the CHRI has published its report ‘The Missing Link’. But I wondered if you could summarise your views on that. You wrote the Forward for this report, which is available on the internet.
YG: Yes. CHRI had been saying for some while, that there should be such a Commissioner, even before this report by the Eminent Persons was written; and we were very pleased to see it was strongly endorsed by Michael Kirby, the main person on that. My view was that there are so many institutions on human rights.
SO: And you yourself are a special representative on Cambodia…
YG: Reports have been done, etc. But there was a feeling that partly too, it will give more visibility to the notion of rights. It’s a commitment to the Commonwealth, and so on.
SO: You don’t feel it would be duplicating the work of the UN Human Rights Commissioner?
YG: Yes, it could be. But then also you see, what does the UN do with the report? Nothing. And when I was the UN Secretary General’s Representative on Human Rights in Cambodia, I used to go twice a year to Geneva to make a report. The Human Rights Council was most reluctant to make any resolutions against the government. Towards the end I didn’t expect any justice from that body. I said at least if we had a really good person as a Commonwealth Human Rights Commissioner, who had time for detailed investigation and who was firm, someone like Kirby, for example, that may make a difference. And there was no harm, people were saying, in having an extra officer, emphasising constantly Commonwealth commitment to human rights.
SO: Surely that’s the role of the Secretary General?
YG: Sure, but the Secretary Generals have always been very poor on questions of human rights, lest they offend members states. Sharma has been a disaster. When the CHRI was established, we had good co-operation from the ComSec. And when there was some big meeting they would invite us and even, I think once or twice, meetings have been held abroad, they have said, “You come. We’ll pay your ticket.” etc. because there’s some small fund for NGOs. Then I don’t know what happened. By that time I was no longer on the Advisory Council relations had broke down– something happened but I don’t really know what. These days I get the impression from the Director of CHRI, that relations are quite tense.
SO: Sir, as my last question: what do you feel about the Commonwealth going forward? Are you reasonably confident in its efficacy? Do you think that its principal energies and impact are going to come from civil society, rather from governmental level?
YG: It won’t come from governmental level, that’s pretty clear. Look at the last conference in Sri Lanka. The campaign to boycott: they didn’t achieve anything out there. Maybe one person didn’t go, the Canadian Prime Minister, out of principle.
SO: The Indian Prime Minister stayed away, as well as Steven Harper.
YG: Who wants Harper for a friend? So I think I don’t really have much confidence in the Commonwealth promoting human rights. Like the African Union it is rapidly becoming the union of dictators and tyrants. I use this word very advisedly: the killings that go on and so on. There are some technical committees. I have followed very little, but there is a Commonwealth Electoral Group and I have looked at the way they did their observation in Fiji and then we had a meeting in Kenya. It happens that the Chair of the Kenyan Electoral Commission is also a Chair of this Commonwealth Association of Electoral Commissions. And my friend Amitav [Banerji] came and it was all big praise for the Chair of Kenya: “Oh, this wonderful elections you had.” I mean! So there’s no hope from the Commonwealth at all, at all. And now China coming out the wood and everything changing, everybody’s nervous. Britain doesn’t want to know; so I have no hopes at all. Civil society yes, I think they are doing good things. They are doing lobbying. Whether they have made any fundamental difference, is another question. In Kenya I would say ‘not much;’ they may have made a major difference in the last years of Moi’s rule. At the end of the Cold War, the West started saying, “Okay, now we can afford to have a democratic system in Africa.” And then there was some pressure and they did get support from civil society. I think the role was positive, but it is very opportunistic as well. I now speak as somebody from civil society, dealing with the embassies. There is almost no local funding in Kenya, anywhere in Africa I would think, most of the money comes from embassies basically, which means they’re aid agencies.
SO: Yes, and that’s problematic in itself.
YG: Yes. They have their own politics; sometimes our interest as civil society coincides with the interest of the donors. If not, we don’t get the money. Civil society has become rather, I won’t say ‘complacent’, but they’ve got into a routine; they are well paid, they have cars, they have expense accounts. They are of course very active in Kenya: there’s a press statement every week by one or the other and there are meetings held. But I’m not so impressed by what’s going on.
SO: You make it sound a little bit like a benefit system.
YG: Well, in a way it is. It is also like there’s Foreign Office staff, there is the Treasury staff, there is the staff for NGOs. So they move from one to the other…
SO: They do.
YG: In Kenya we have as good a civil society as others. South Africa is an exception, where civil society is well organised, from apartheid times—and effective to an extent. But they are pessimistic about the future. So I don’t know what the answer is. I think people say “Commonwealth? That body with great standards and commitment? Forget about that.” They may do some good, I know they have done some good in their work for small states, especially Ramphal who himself comes from the Caribbean. That emphasis was good because people were not showing much interest in small states, in the South Pacific and so on. Nobody was showing that much interest, except Australia and New Zealand. But the Commonwealth put a focus on that and did reports and provided consultancies. So that was good; but whether they continue that I don’t know. These countries are now no longer new infants, they have matured.
SO: Professor Ghai, thank you very much indeed.
[End of recording]