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The portrayal of diplomacy on the complex issues of foreign policy

I take it that the Commission wants to hear views on the desirability or otherwise of the constitution regulating the conduct of foreign affairs and diplomacy and if it is so desirable, the extent of such regulation. Before putting forward arguments for or against such constitutional regulation of the conduct of foreign affairs it is pertinent to make a re-statement of the current constitutional position in Kenya on this important subject.

The foreign policy of a state is the combination of principles and norms, which guide or determine relations between that state and other states or bodies in the international system. The path each state decides to follow in world affairs depends on its capabilities, actual or potential, and its assessment of the external environment.

In our constitutional context the conduct of foreign affairs is the prerogative of the chief executive, i.

  • On the whole, however, the Chief Executive of the State everywhere guides foreign policy;
  • Let me rest there the case against a pronounced constitutional role for the citizen in the conduct of foreign affairs;
  • Secondly, international political strategy may sometimes depend on secrecy and surprise for success;
  • Let us hope that wisdom will prevail in 2018.

The independent Government of Kenya inherited all the prerogative powers that the Queen could exercise in relation to Kenya in 1964, via S. To date, foreign affairs are conducted under prerogative powers. Indeed it is also right to say that the power to conduct foreign affairs is part of the executive powers that are expressly vested in the President by Article 23 of our Constitution.

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On both premises the Government is free to negotiate treaty and other relations with foreign nations, subject only to the rule of incorporation into domestic law, where such incorporation is necessary. Save in such cases of incorporation into domestic law, there are wide and important areas in foreign affairs where the Government is free of legal, as opposed to political controls.

These include the declaration of war, the dispatch of armed forces, the annexation of territory, the conclusion of treaties, the accrediting and reception of diplomats and the recognition of new states and revolutionary governments. All such acts sometimes called "acts of state" fall within the scope of the prerogative to conduct foreign affairs and are assertions of state sovereignty in international relations.

To recapitulate then, foreign policy is the prerogative of the Chief Executive, His Excellency the President. He is the chief initiator, articulator, and director of our foreign policy at any forum or platform of his choice.

The Minister for Foreign Affairs, like any other Minister of State, may defend and articulate such a policy and represent the President at various fora where foreign policy issues are discussed and debated and a stand taken on issues, but the ultimate prerogative and privilege of initiating, directing and shaping foreign policy remains with His Excellency the President.

Nor is this unique to Kenya. The method or style of formulating and articulating foreign policy may vary from country to country. In one case there may be a highly institutionalized and some what predictable system, while in another the system may be highly personalized and less predictable. On the whole, however, the Chief Executive of the State everywhere guides foreign policy. The issue of the constitutionalisation of foreign policy and diplomacy, which I have interpreted to mean the need the portrayal of diplomacy on the complex issues of foreign policy or otherwise for express constitutional regulation of the field leads to the following questions.

For example, should the executive have an exclusive authority over the conduct of foreign affairs or should it have some limited role? If so what should be the extent of such limitation? Should for instance major decisions such as the declaration of war or conclusion of peace, the conclusion of treaties and appointment of Ambassadors be subjected to Parliamentary ratification, vetting or some form of censor, as the case may be?

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The answers to these questions will hinge on the assessment of the competence of each of these institutions in the matter of foreign affairs, the Executive, Parliament and the Citizen. In a nutshell the contest is between greater democratization of foreign policy on the one hand, which would mean a constitutional role for the citizen and his representative in Parliament to participate in the formulation of foreign policy and diplomacy, and an exclusive or near exclusive assignment of responsibility for the conduct of foreign affairs and diplomacy to the Executive organ of the State, on the other hand.

Whether the country adopts one or other of these options or a sort of a hybrid. What is needed is a constitutional structure where competence, confidence and power are properly assigned in the constitution to facilitate effective foreign policy.

I want to state at the outset my bias for the position which some of you will no doubt call conservative in favour of the primacy, if not monopoly, of the Executive over the conduct of Foreign Affairs and Diplomacy.

In our own modern times it is interesting to note that even in such renowned constitutional democracies such as the United States of America where Congress has been given an express role in the Constitution to influence foreign policy, the courts have liberally invoked the doctrine of "political questions" which lie largely outside judicial competence or authority, in-order to avoid deciding on matters relating to the conduct of foreign relations.

Thus, for instance, in 1829, in the case of Foster-v- Neilson the Supreme court refused to rule on the location of the boundary between Spain and the U. Constitution making is after all about better democratic governance. Ideally in a democracy citizens must decide on the ends of public policy and the means of those ends.

A country is democratic or non-democratic to the extent that the citizen can or cannot influence the conduct of his or her country's public affairs. In the realm of foreign policy as one part of public policy the question arises as to whether the citizen is competent enough to decide on issues of foreign affairs and diplomacy, so as to be given a clear role to that effect.

The simple answer is no. The average citizen is least competent in this field as there are many difficulties that confront him or her in making rational decisions.

I would like to outline here some of the major barriers to citizen competence in foreign affairs. A central problem of democracy in a complex modern society turns upon the question as to how and indeed whether the citizen can bring to bear on broad questions of public policy sufficient rationality to achieve his basic purposes. By rationality here, we mean the capacity to choose the best means available, i. Ordinarily most of us tend to act rationally when we have to make choices about things within our own experience, than when we are concerned with things remote the portrayal of diplomacy on the complex issues of foreign policy us.

Foreign affairs is definitely one field of public policy in which the problem of rational decision making by the citizen is great. This is because foreign policy questions involve matters that are not of immediate or direct interest to many of us. The more remote the issue is from my experience the less rational I am likely to be in making a decision.

Not only are foreign policy decisions remote from most of us; they are also often extra-ordinarily complex even to the expert. The individual citizen's claim to a direct constitutional role in foreign policy making also comes up against impediments inherent in the political machinery for registering choices. By its very nature politics does not favour the citizen with clearly formulated alternatives from which he can make a rational choice.

For instance, the absence of coherent parties, the lack of decisive influence by the party leadership over party voting in parliament, the perennial and sometimes deliberate ambiguity of the party platform and its general inadequacy are hallmarks of many a multiparty political the portrayal of diplomacy on the complex issues of foreign policy.

All these serve to confuse the citizen and inhibit him from making an effective choice. Let me rest there the case against a pronounced constitutional role for the citizen in the conduct of foreign affairs.

I want now to turn more specifically to-the case against parliamentary competence in this field. We said that an action is rational if it is designed to achieve the preference of those in whose interest the action is taken. Foreign policy decisions are taken or at least ought to be taken for the benefit of the country in its entirety, and not of one segment. The enhancement of the national interest must always be at the fore of decision making.

Greater parliamentary role in the conduct of foreign affairs can only mean or lead to greater inquiry, discussion and debate by parliament in the formulation of policy.

Yet such inquiry, discussion and debate would mean ventilation in public and augur badly for the effective pursuit of foreign policy in the national interest.

  • Effective foreign policy responses to international events often required accurate prediction of the behaviour of other actor and future happenings, a function the experts serving the executive, and not the citizen or politicians, are best suited for;
  • Additionally, given the opportunity to have a constitutional role over foreign policy, M.

Firstly, such public ventilation on issues may militate against attaining agreement on objectives. Publicity given to the process of negotiation can hinder rational and responsible decision making.

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The glare of public debate promotes policies of extreme intransigence as every concession is likely to be seen as weakness in the mirror of public opinion. A leadership which might otherwise tactfully concede a bargaining point and then give way to achieve its real aims, may not do so for fear of losing face at home. As both sides suffer the same fate international negotiations will be stalled! Secondly, international political strategy may sometimes depend on secrecy and surprise for success.

It can sometimes be disastrous to draw up plans of action and then broadcast them through public or Parliamentary debate. Further, because international events move with speed, there is a premium on the ability to decide and to act quickly.

Not infrequently, the state may have only one chance to decide - i. The process of inquiry, discussion, and debate in Parliament is inherently ill-adapted to speed. But an essential quality of the legislative function of inquiry, discussion and debate, is the exposure of differences, i.

Such public display of disunity, is a serious limitation on effective foreign policy. The portrayal of unity in the country on foreign policy is the guarantee for full mobilization of the nation behind the policy concerned and perseverance and tenacity in the pursuit of that chosen policy.

These in turn lead to fuller and persistent exploitation of a country's power potential. Conversely, a display of disunity behind a foreign policy option results in conflict and compromise, and therefore, a less than full exploitation of the country's power potential.

  1. All such acts sometimes called "acts of state" fall within the scope of the prerogative to conduct foreign affairs and are assertions of state sovereignty in international relations.
  2. The argument is succinctly captured in the words of an American Supreme court judge "It is quite apparent that if, in the maintenance of our international relations, embarrassment...
  3. But an essential quality of the legislative function of inquiry, discussion and debate, is the exposure of differences, i.
  4. As government becomes more complex, citizens' demands on the M. The field of foreign affairs is one characterized by rapid shifts and increasingly crisis politics.
  5. It is usually unlikely that organizational problems will preoccupy the attention and interest of the Member of Parliament.

Moreover, the training, education, and personality of the Members of Parliament are not particularly conducive to the managerial, executive kind of outlook which is suitable for effective foreign policy. It is usually unlikely that organizational problems will preoccupy the attention and interest of the Member of Parliament.

The politician, has been said to be less interested in creating order, rules, organizational "efficiency," and more interested in manipulating order, rules and organization to suit his purposes. Even if the average Parliamentarian were to be well versed in foreign policy issues. Parliament faces severe constraints of time to effectively influence foreign policy. The Members of Parliament tend to devote their daily activities to the needs and plaints of his constituents.

He dare not take time from this function to attend to his more national duties, because it is his service to constituents and not his stand for the national interest, that will get him the votes. As government becomes more complex, citizens' demands on the M. P, multiply, and time becomes increasingly in short supply. If parliamentarians are to effectively discharge responsibility in foreign affairs they will have to overcome this problem of time constraint. Additionally, given the opportunity to have a constitutional role over foreign policy, M.

Ps are bound to become preoccupied with attempts to control details as a method of controlling policy. This will be a most undesirable development. Were the method of parliamentary control of foreign policy to be by Parliamentary legislation it would mean a rigid foreign policy which will be as undesirable as it is impractical.

Having considered both the citizen and the MP and marshaled arguments against their leading roles in the conduct of foreign affairs that leaves us to examine the position of the Executive. As I said at the beginning the general trend the world over is to give primacy, if not monopoly, to the executive in the conduct of foreign affairs.

The field of foreign affairs is one characterized by rapid shifts and increasingly crisis politics. The fact that international politics is increasingly characterized by acceleration of events makes speed and flexibility of decision making critically important.

Speed and flexibility necessary for creating and implementing foreign policy, demands the executive be conferred with near exclusive responsibility in foreign affairs as the only guarantee for competent policies.

The argument is succinctly captured in the words of an American Supreme court judge "It is quite apparent that if, in the maintenance of our international relations, embarrassment. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials". Effective foreign policy responses to international events often required accurate prediction of the behaviour of other actor and future happenings, a function the experts serving the executive, and not the citizen or politicians, are best suited for.

Additionally as between the competence of the Citizen, of Parliament and of the Executive, responsibility and nation-wide consensus is more likely to be achieved through the executive. The executive alone is best placed the portrayal of diplomacy on the complex issues of foreign policy secure a national mandate for its foreign policy. This is because the executive founded on an electoral mandate is the organ which can claim to be responsible to a national-wide electorate, which is capable of basing policy upon the widest possible agreement or consensus in the nation, and above all, which has at its disposal the organization and information necessary for rational action amidst the tremendous complexities of international politics.

  • By its very nature politics does not favour the citizen with clearly formulated alternatives from which he can make a rational choice;
  • The glare of public debate promotes policies of extreme intransigence as every concession is likely to be seen as weakness in the mirror of public opinion;
  • The role that Turkey can play in the Middle East is an integral part of its sustainable reliability in the West, too;
  • Effective foreign policy responses to international events often required accurate prediction of the behaviour of other actor and future happenings, a function the experts serving the executive, and not the citizen or politicians, are best suited for;
  • It can sometimes be disastrous to draw up plans of action and then broadcast them through public or Parliamentary debate.

It is my humble view that discretion over foreign policy by political leadership-often very great discretion is essential for survival in modern international politics. Foreign policy is too complicated an affair to be conducted by plebiscite of public opinion.