Legality of establishment of the people’s assembly

| NRM led by Senator Orengo during their Kakamega assembly visit on November 9, 2017 as part of their efforts to form People's Assemblies.

By Michael Olukoye

The National Super Alliance, NASA, has been in the news in the recent past with plans to initiate a people driven government based on peoples’ assemblies. They state that national government has used instruments of power to subvert the will of the people through sham elections, necessitating the action. This article attempts an analysis as to whether the Constitution of Kenya contemplates such a form of governance.

Interpretation of the Constitution of Kenya

The High court of Kenya in Nairobi in the case of Institute for Social Accountability and Another vs. The National Assembly and 4 others [2015]eKLR stated thus: “The Constitution of a Nation is not simply a statute which mechanically defines the structures of government and the relationship between the governed and the government. It is a mirror reflecting the ‘National Soul’, the identification of aspirations and ideas of a nation, the articulation of values binding the people and disciplining its government. The spirit and tenor of the Constitution must therefore permeate the process of judicial interpretation.” This is a restatement of the often quoted statement that the constitution is a “living document” and must be interpreted as such, taking into account the values that led to its creation.

Article 259 of the Constitution provides for rules of reading the Kenyan Constitution. Article 259(1) provides that the constitution shall be interpreted in a manner that, among others, promotes its purposes, values and principles, advances the rule of law and human rights and fundamental freedoms in the Bill of Rights, permits the development of the law, and contributes to good governance.

National Values and principles of governance are provided in Article 10. It, among other things, provides that national values [10 (1)] bind all persons. Article 10(2) provides that the values include (a)…the rule of law, democracy and participation of the people; and (c) good governance, integrity, transparency, and accountability.

The Constitution of Kenya Review Act 2008, which repealed the former constitution, provides as follows: In Paragraph 3, (a) that the people of Kenya have yearned for a new Constitution which (b) establishes a free and democratic system of Government that ensures good governance, constitutionalism, the rule of law… and (c) recognises and demarcates divisions of responsibility among the various state organs, including the Executive, Legislature and Judiciary, so as to create checks and balances between them and to ensure accountability of the Government and its officers to the people of Kenya.

Recurrent themes in all the above provisions as relevant to our discussion include rule of law, good governance, human rights and accountability of the system of government to the people.

The concept of rule of law has been said to envision, among other things, “supremacy and certainty of the law”. Supremacy of the law here means that the law is the ultimate authority that governs the relationship of people amongst themselves, and between them and the government. Its provisions will thus be what binds and regulates conduct of persons where that law operates. Certainty of the law means that the operation of the supreme law must be, to some extent, foreseeable. Law has to not just be known, but it must also be known how the law requires that people behave.

Good governance has been spoken of as the process of making and implementing decisions by people in government/authority. It has, among others, the following characteristics: accountability to the governed, transparency – such that people can follow and understand decision-making process – and it must follow the rule of law.

Accountability envisages a political authority that has to justify its actions and decisions to the people, failure of which the people reserve the right to oust that government and put in place a new one.

Human rights, or as provided in Article 259, respect for fundamental rights and freedoms includes, among other rights, political rights as envisaged in article 38, to make political choices including vying for elective office.

Therefore, in interpreting the Constitution, we have to adopt an interpretation that while giving effect to the will of the people, promotes the rule of law, good governance, accountability and respect for human rights.

Exercise of sovereign power as contemplated in the Constitution

Article 1 of the Constitution provides, “(1) all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution.” Sovereign power or sovereignty has been explained as the power of people to govern/rule themselves and manage their own affairs. Thus, it follows that the power to govern in Kenya can only be exercised as the Constitution of Kenya provides.

Article 1(2) provides that this sovereign power may be exercised either directly or through democratically elected representatives. The latter is easy to understand. Democratically elected representatives are adequately provided for by the Constitution in Chapters 8 and 9 of the Constitution in providing for the Legislature and the Executive in the National Government, and in Chapter 11 for devolved government.

However, exercise of direct democracy in Kenya though envisioned by the Constitution, it is not adequately provided for. The key element of direct democracy is that all citizens directly participate in decision-making on matters affecting the State. The only matter for which exercise of direct democracy is provided for is the amendment of the Constitution under Article 257 by popular initiative.

Article 1(3) acknowledges the same, delegating exercise of sovereign power to several state organs, among them (a) Parliament and the legislative assemblies in the county governments, and (b) the National Executive and the executive structures in the county governments. It affirms in Article 1(4) that this sovereign power is exercised at only National and County Government levels.

This reading of Article 1 conforms to what the Constitution requires to be considered in interpreting it –rule of law, good governance and accountability. This is as the governance system is in law and provided for with a relatively high degree of certainty of functions and how they can be held accountable. This ensures in the end achievement to some degree of good governance that can be held accountable by the people.

Therefore, it is safe to conclude that the Constitution envisages only representative democracy as regards governance matters in Kenya.

The idea of the People’s Assembly, however, are like unchartered, unmapped waters. The law as it is does not contemplate them and thus they cannot purport to act within the law or be held to account by it

Legality of people’s assembly

In the roadmap circulated by the National Super Alliance, the People’s Assembly is premised on Article 1 of the Constitution, which, in their interpretation, vests in the people the right to directly exercise their sovereignty.

As demonstrated above, the interpretation of Article 1 of the Constitution cannot grant the power to exercise governance except as in accordance with the Constitution. The constitution having not contemplated People’s Assemblies, the creation of such cannot be Constitutional.

The themes driving the People’s Assemblies are as follows: restoration of democracy, rule of law and constitutionalism; restructuring the Kenyan State; defending devolution and; economic liberation.

While the People’s Assemblies may be pursuing noble and legitimate goals, I would like to follow the decision by the High Court of Kenya at Mombasa in Randu Nzai Ruwa and 2 others vs. The Internal Security Minister and another [2010]. In that case, it was stated, “democracy is not a license for lawlessness” and that that the applicants were better placed to pursue their agenda through legal means.

Likewise, it is better to strive for the reforms proposed through legal means, as the law is certain, predictable and thus anyone acting within it can be held accountable for either acting within or outside the law. The idea of the People’s Assembly, however, are like unchartered, unmapped waters. The law as it is does not contemplate them and thus they cannot purport to act within the law or be held to account by it.   




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