Perils and inconveniences of the rule of law under the Constitution

Kenya has what has been described as one of the most progressive constitutions in the world. Yet, despite the nobility of the document, the country’s state of the rule of law is a far cry from what is envisioned in this vital document. What gives? It is just about political goodwill? What lessons can we draw from failures/challenge experienced so far?

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By Kibe Mungai

As solemnly stated in the Preamble, the ultimate purpose of enacting the Constitution of Kenya, 2010, was to achieve the “aspirations of all Kenyans, for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. To ensure that the achievement of this collective aspiration would not turn into a false prospectus as it happened with the Independence Constitution, the latter document provides for ten key safeguards and obligations of key state officials.

One, Article 1 of the Constitution codifies the revolutionary notion of people’s sovereignty, which may be exercised either directly or through democratically elected representatives of the people. Two, Article 2 of the Constitution declares the supremacy of the Constitution over all persons and all State Organs. Three, Article 3(1) makes it an obligation of every person to respect, uphold and defend the Constitution. Four, Article 20(1) states that the Bill of Rights applies to all law and binds all state organs and all persons.

Five, under Article 94, one of the roles of Parliament is to protect the Constitution and promote the democratic governance of the Republic. Six, under Article 131, the President is inter-alia, a symbol of national unity and shall ensure the protection of human rights and fundamental freedoms and the rule of law. Seven, Article 156 enjoins the Attorney-General to promote, protect and uphold the rule of law and defend the public interest.

Eight, Article 157 vests the State’s power of prosecution in the Director of Public Prosecutions (DPP) and in the exercise of his powers he shall not be under the direction or control of any person or authority.  Nine, Article 160 provides that the Judiciary is only subject to the Constitution and shall not be subject to the control or direction of any person or authority. Ten, Article 249 provides that the objects of the constitutional commissions and the independent offices include protecting the sovereignty of the people and promote constitutionalism.

In respect of the ten safeguards and yardsticks above, the fortunes of the 2010 Constitution are anything but rosy. At a general level, the 2010 Constitution faces a double challenge. First, the common tragedy of nearly all important constitutional offices is that they are held by persons who are mere politicians in everything but name, beginning from the Chief Justice to the DPP. Secondly, President Uhuru Kenyatta has done little to actualise the great promise of a presidential system to place the fate of Kenya in the hands of its most capable, patriotic and honest citizens. Let us go back to specifics lest we are accused of making sweeping statements.

Flipside to ‘People’s Sovereignty’

The democratic principle of people’s sovereignty is a powerful antidote to tyranny but it also carries the seeds of revolution that could easily subvert and even abolish democracy.

This, indeed, is the reason why Article 1(1) provides that sovereign powers shall be “exercised only in accordance with this Constitution”. In practice, this is easier said than done as the mass actions called by Cord to force out IEBC Commissioners from office amply demonstrate. Thus, in the short-term, a revolutionary idea that was intended to secure democracy is increasingly being deployed to subvert and by-pass the duly established constitutional mechanisms for exercise of sovereign power.

In all probability, it is true that for the most part, the Constitution is the supreme law in Kenya. However, the consequential declaration that it binds all persons and all State organs is not always true. Consider the case of the Cord leader Raila Odinga. Since 1999 when he recanted revolutionary politics and took his place in mainstream politics in collaboration with Kanu, Raila has transformed into a constitutional phenomenon in his own right. Without a doubt Raila has been Kenya’s political centre of gravity since 1998 when President Moi was sworn in for his last term in office.

As a constitutional phenomenon, the notion that the Constitution binds Raila Odinga is probably half truth and certainly a white lie.  In December, 2007 Raila lost the elections but in the wake of murderous gangs chanting “No Raila, No Peace”, this good Republic was left with no option but to pacify him with a hurriedly created seat of prime minister and nusu mkate cabinet. For their sins in declaring Mwai Kibaki the winner of the 2007 elections, Raila led a high-intensity campaign to disband the ECK and hound Samuel Kivuitu and company out of office. A decade later, Raila is back at it again and now Isaack Hassan and company are being hounded out of office for the sin of declaring Uhuru Kenyatta the duly elected President in the 2013 elections.

I hate to acknowledge this but it is true that Raila is a political god in Kenya. For good reasons, he cannot have confidence in the IEBC. Since Kenya has a severe deficit of men and women of principle, everyone, including the clergy, is busy pretending that the country has no faith in IEBC.  Perhaps that is true, since even I have shaken confidence in IEBC; but why is it so difficult to use our so-called supreme law? The simple answer is that in a direct conflict between Raila and the Constitution of Kenya, Raila has always prevailed. Will President Kenyatta allow him to prevail once again?

Reluctant defenders of the Constitution

My friend, Okiya Omtatah, is an able and consistent defender of the Constitution and the rule of law in Kenya and he was almost killed for it three years ago. In polite society, Omtatah is a figure of ridicule for poking his nose all the time into other people’s affairs. On a normal day, my other friends George Kegoro, Maina Kiai and Senator James Orengo are decorated defenders of constitutionalism and human rights.  Yet this trio sees no contradiction in demanding for disbandment of the IEBC through extra-constitutional mechanisms. The way I see it is that unless more people join Omtatah to defend the Constitution as Article 3 of the Constitution commands, the Rule of Law will continue to be imperilled at every other turn.

Hollowness of the Bill of Rights

In a capitalist Society, no set of rights are more precious, in my view, than the right to life, the right to human dignity, the right of a Kenyan citizen to enter, remain in and reside anywhere in Kenya and the right to acquire and own property of any description in any part of Kenya. No other set of rights are in greater danger of being violated in Kenya than these, yet all too often the laws of Kenya have not stood up to be counted whenever they have been violated. The so-called ethnic or political clashes in the 1990s were all about violation of these rights.  Even Post-election Violence (PEV) of 2007/2008 was all about these rights and probably the mass killing of Mungiki leaders.
Parliament as an Auction House

In civilised society, the right to life is the most precious. However, in Kenya, except for big time types, extra-judicial killing of suspected criminals no longer makes headline news.
In both the National Assembly and the Senate, there are honourable men and women who put in an honest day’s work to play the role vested in them by the Constitution.

Unfortunately, these men and women are a tiny minority and, in the end, their difference is hardly felt. Rarely do you find more than 40 MPs in the National Assembly; there is no evidence of Burkean autonomy in the voting patterns in Parliament; more often than not MPs pass laws that hardly a handful of them know about – in terms of content and ramification; most tragically the role of supervision has become an extortion racket. As I write this piece, in the headline story in The Star newspaper, the IEBC dismisses a report by Parliament as a witch-hunt intended to summarily guillotine its officials.

Presidency too political to unite Kenyans

Whether out of political insecurity, arrogance or reckless disregard of the challenge of diversity, the loyalty test in the Jubilee administration is dangerously narrow and myopic.  In 2013 General Election, Jubilee had little choice than to try and win the election through maximum leverage of the voting power of GEMA and Kalenjin communities. Having won the elections, I expected that the President would genuinely seek to broaden his political base by reaching out to communities that voted against him en masse. Specifically, the President ought to have reached out to the Luo as the first proof of sincerity in serving as Kenya’s symbol of unity. In this regard, it is hard for me to consider that a Kenyan cabinet without a Luo man is legitimate enough.  In fact, a cabinet without at least three Kikuyus or two Luos and two Luhyas cannot be sufficiently legitimate in my view.

Conflicted position of the Attorney-General

In the ideal world, government is the ultimate force of good and guardian of public interest. However, the regimes of Daniel arap Moi, Robert Mugabe, Mobutu Sese Seko, Bashar el Assad, Adolf Hitler and Benito Mussolini are evidence that government is not always for the rights and welfare of man. Hence, at times, being on the government side could promote public interest but in other times defence of public interest dictates opposition to authority.
The Constitution creates the office of Attorney-General, whose holder is expected to tell with certainty when to hunt with the government and when to run with the people. On one hand, the AG is the principal legal adviser to the Government, and on the other, he is obligated to promote, protect and uphold the rule of law and defend the public interest. This is not an easy task, and so my good law Professor Githu Muigai has often cut the figure of a conflicted Attorney-General with obvious consequences to the fortunes of public interest.

Am embarrassed to admit that I miss the days when Charles Njonjo and Bernard Chunga wielded the powers of prosecution of the Kenyan State. I say this because my analysis of State weakness in Kenya partly attributes the phenomenon to systematic erosion and blunting of state prosecutions since 1997.

Blunted powers of public prosecution

In fact, to my mind, the PEV of 2007/2008 is directly attributable to the failure of then Attorney-General to prosecute the hate crimes, subversion and incitement that characterised the post-2005 constitutional referendum period.

According to Miguna Miguna, the appointment of Keriako Tobiko as DPP was a big mistake, and on reflection, it is not easy to dispute this conclusion. All too often, the DPP seems to be too beholden to many external forces that the constitutional refrain that he should not exercise his power under direction or control of any person or authority seems to be a cruel mockery.

Compared to the old Judiciary (of the Nyayo era), the incumbent Judiciary is a godsend.  Yet the Constitution expects the Judiciary to do much more than it is able to deliver in the present circumstances. Nowadays, the Judiciary barks and bites often enough but its bite is hardly deep enough when it matters most.

Judiciary too timid to act as Guardian

In 2008, Raila Odinga mobilised the country to disband the ECK. Samuel Kivuitu and company instructed yours truly to challenge the disbandment of ECK and their removal from office. Against great odds, Justice Joseph Nyamu issued an injunction to disband the ECK which was ignored; as a result, the political objective was achieved. Thereafter, the High Court kept dodging the case until 2015 when it would not run away from the case anymore. And so in little publicised judgement delivered on April 30, 2015, Justices Weldon Korir, Mumbi Ngugi and George Odunga declared, inter-alia, that the disbandment of ECK and removal of its commissioners was illegal.  In their words at paragraphs 175-176:
175. Should the petitioners have been in any way personally liable for the violence that ensued after the 2007 elections, the politicians who incited their supporters to violence and the supporters who heeded the advice are as guilty as the petitioners for the violence that engulfed the country at the material time. The petitioners’ view that they were the easy scapegoats for the violence and that as a result all the blame was heaped on them may not altogether be unfounded. That we have a culture of seeking scapegoats for national and institutional failures, as well as for any calamity that the nation encounters, is obvious and needs no elaboration.

176. In saying so, we do not in any way intend to disrespect the many innocent Kenyans who lost their lives, property and/or were displaced during the post-election violence. Nor should this judgment be deemed to be a vindication of the role played by the petitioners in the conduct of the maligned elections. That issue, however, is not strictly within the scope of this inquiry. What we are saying is that in a civilised society, like the one we claim to be or aspire towards, no man, however grievous the allegations against him, should be condemned unheard. We hope that no Kenyan will in future be subjected to the treatment that the petitioners were subjected to by Parliament.

After making these findings, in a remarkable demonstration of judicial cowardice, the learned judges went on a stroll of mumbo jumbo that concluded that the petitioners were not entitled to any relief, and so dismissed their case. In my view, the value of a judgement is the redress it gives for wrongs. Res jus ibi remdium – there is no wrong without a remedy – is the most precious principle of justice in my book.

As the 2017 General Election draws closer, the debate about how to disband the electoral commission and remove its commissioners has returned to raise political tensions and polarise the country. In a sense, I deeply believe that if the High Court Judges had the courage of convictions to give redress to Kivuitu and Company, the rising tensions over the IEBC could well have been prevented.

Independent Commissions of Politicians-in-Waiting

The typical chair or member of the so-called independent commission is a politician-in-waiting or bedfellow of the powers that be. These worthies are tomorrow’s governors, senators and MPs. Thus, there is a feudal and retrogressive way in which members of the constitutional commissions are appointed in Kenya and so I am not surprised at all that, by and large, they have not made the difference that the Constitution intends.  Sometime I say to myself, half in jest, that if the Constitution permitted it, the Jubilee administration could easily appoint a medical doctor to be Kenya’s next Chief Justice.  The first time that this thought crossed my mind is when Philip Kinisu was appointed chair of the Ethics and Anti-Corruption Commission. Lest I am misunderstood, Daily Nation business columnist Jaindi Kisero might be right that the skills of an accountant are vital to the work of EACC; but try as I can, the principal job of EACC seems to me as one of law enforcement which I believe is primarily a lawyer’s job.

The EACC is just an example. Across the board, commissioners and directors seem to be appointed on purely political consideration. Sometimes these positions are actually auctioned to the highest bidder. And so, if I hold a position because it is reserved for the Kikuyu, why should I be expected to defend Kenya’s interest in the exercise of my functions? If I absolutely owe the position to a political godfather, how can I be independent of him subsequently?

This analysis cannot be easily concluded. And in lieu of a conclusion, I say that the Constitution, 2010, is innocent and remains a great idea. Occasionally, it will not be convenient to read it and act as the Constitution states but that is the nature of our society. But even those tempted to ignore it whenever convenience dictates had better remember that, if it lives longer than its jaundiced makers, the 2010 Constitution could well be the most important legacy to our children.

Writer is a practising constitutional lawyer

 

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