By Shadrack Muyesu
One of the great changes of the Constitution of Kenya 2010 was to ensure that the State was founded on popular sovereignty. By demanding that a president be not only popularly elected but also enjoy popularity in the majority of the regions, Article 138 guaranteed a president that was acceptable to most of the citizens. The law would have been good. Unfortunately, the drafters failed to specify the minimum percentage of votes to be cast against which the standard cited in Article 138 would be assessed. They also failed to base popular sovereignty against citizenship (instead they focused on voters). By these 2 acts of omission, they ab initio nullified the gains made by the demand for popular sovereignty.
There are three ways of assessing legality and legitimacy. The first is the route I have already taken – to accept the law as inadequate yet not by any fault of the drafters of the Constitution. At best, the law is reactive; it cannot anticipate everything. Too, the law cannot descend to and regulate every facet of human life. Beyond written law there is a natural law, rationalism and morality that most defines and regulates human interactions. This makes these forms of law just as important as the written text. I shall elaborate.
The second argument supposes that written law is the only relevant law (of which the Constitution reigns supreme). Unless further elaboration by an act of parliament demands otherwise, the Constitution must be construed as against itself with none if its article destroying another. But more importantly is the idea that both the spirit and the letter of the Constitution must be considered during interpretation. The spirit of the Constitution is a hazy concept. While it is generally considered to be the wish and intent of the drafters, some scholars argue that spirit is a myth created by those who would want to subvert the written text, the letter of the constitution.
The third is the most controversial. It comes from the first. It is the presumption that while written law may be most important and the Constitution the principle law, some clauses of the Constitution are actually greater than others. These superior clauses are called superior norms and sometimes exist outside the Constitution. This position was reaffirmed by the Supreme Court of India in Kesavananda Bharati … vs. State Of Kerala And Another where among others, the court found Fundamental Rights to be outside the amendatory process in article 368 of the Constitution of India if the amendment seeks to abridge or take away any of the rights and reaffirmed the special status of the preamble as guide to the constitution.
Superior norms are the backbone of every constitution, the rules that define the nature of the community it’s meant to govern, and how it (the Constitution) is supposed to be construed. They are “the Constitution in the minds of the people before it is reduced into writing”. And since every intention cannot be codified as highlighted above, there remain important rules that define society and cannot be ignored. These norms could be the unamendable rights and features of the Constitution or the general public morality – the general views, beliefs and characteristics of the people. As German Political Scientist and Philosopher Karl Lowenstein argues, constitutions which do not reflect this general morality, political needs and socio economic environment usually prove to be ineffectual as they are often fiercely resisted – albeit subconsciously. Amendments or interpretations of written text that defy the highlighted superior norms are also resisted. To some extent, superior norms, within or without the Constitution, may actually be the true spirit of the constitution.
A president by law, an ordinary man by public sentiment
Is legitimacy the same as legality therefore? If not, can legitimacy be inferred from the Constitution and does it take pre-eminence over legality? And depending on the answers to these questions, is Uhuru Muigai Kenyatta the legal and legitimate president of the Republic? The answers to these questions vary depending on whatever approach from the ones cited above one may chooses to adopt.
For positivists, those who believe in written law above all else, legitimacy and legality are one and the same. As long as a court, properly sitting and guided, found the election to have been conducted in accordance with the law Uhuru is the legitimate head of State. From a positivist view, there is no disputing this statement, for even if one were to sight a misconstruction of law on the part of the Supreme Court Judges, their decision is, according to the Constitution, final and there can be no recourse for without the written text there is no law.
Morally, naturally and rationally, however, it would be most unjust if the President presided over people who overwhelmingly did not vote for him. A decision based on a logical analysis of utility would only arrive at one conclusion – that the President cannot be president if a majority of the country rejected him – either by act or omission. That is the essence of democracy. Not only is the President a symbol of national unity, but the reigning spirit of the Constitution, harambee, demands that the country pull together in one direction. It is not true the belief that this unity can only be aspired to at the end of an election. By making popular sovereignty an integral pillar of the Constitution, Kenyans intended that the country would emerge from every election sufficiently united, having largely agreed on the choice of president. In short, unity after an election was to be automatic and the President was to symbolise it by virtue of his election and action to address any arising discontent.
It doesn’t matter that the Court showed confidence in the process (the repeat presidential election) if a significant part of the country did not participate in the process or believe that the exercise was flawed. In any case the court is only a court of procedure. It doesn’t care so much about rational, moral or academic arguments which unfortunately, play a huge role in our system.
The question then becomes, what should carry more weight? The Constitution and other written law or what the citizens want? Article 1 gives sovereign power to the people, which may be exercised directly or indirectly through elected representatives. From the outset, there seem to be two equal ways of demonstrating citizen power. The right to vote, under Article 38, falls under second limb – it is certainly not the only way of exercising sovereignty as is widely misconstrued. Direct sovereignty provides space for tools such as mass action, public interest and strategic litigation, recalling elected officials. Most importantly it makes the right not to vote a justiciable right, in that protesting an election can be seen as way of choosing government. For instance, instead of basing their presidential election petition on Article 38, the petitioners in the most recent petition could have anchored it on Article 1 (1& 2). Unfortunately, the first limb has been neglected almost to the point of being forgotten.
The importance of sovereign will was emphasised In Riordan vs. An Taoiseach, where one judge observed that no question of a constitutional amendment properly placed before the people could be unconstitutional. In Hanafin vs. Minister of the Environment, the court not only restated the incompetence of any state organ, including courts, to overrule sovereign will; it also deemed such the will to be freely given and therefore incapable of question.
In conclusion, while we are called upon to acknowledge the status of the constitution and respect the authority of the courts, this should not to be an excuse for ignoring every other legal, moral and rational force. Certainly it should not be to ignore what the citizens have said by act or omission! If the country is to move forward, judges have a duty to demonstrate legal ingenuity when it comes to interpretation the constitution. After all, the constitution is like the Bible. The Bible will not address itself to every sin but can relate and know that we are sinning when we perform certain acts. ^