On Remba, the law ought to work for man

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Jesus entered the temple and ate bread meant for worship. He also said, in response to a question by teachers of the law that the Sabbath was made for man not man for Sabbath. Afterwards, he healed a man on the Sabbath at a time when people were forbidden from doing any work during the Sabbath. When the Pharisees pointed it out he answered by wondering whether it is lawful, on the Sabbath, to do good or evil, to save a life or destroy it? Thus was born the maxim – the law is made for man, not man for the law – which has since been adopted as legal parlance to date.

Mid-last month, Kenyans woke up to the news that a private electricity generating company operating on Remba Island in Lake Victoria, close to the Ugandan border, had been shut down and the operator arrested. Energy Regulatory Commission closed down the plant through police officers attached to National Environmental Management Authority. NEMA then issued a statement that it had earlier reviewed and made no objections to the plant.

Remba Island is about three kilometres from Kenya’s border with Uganda. Before Migingo Island, which touches the border, was inhabited, Remba was Kenya’s last outpost on Lake Victoria. It is only recently that government has managed to get electricity to Mfangano Island, which is visible from the mainland. It will take a long time to get power to Ringiti, Remba and Migingo Islands deep inside Lake Victoria. The question here is, what sense is there in pulling down a plant that provides today what the government may do a decade from now, even if it’s illegal – but harms no one?

ERC will argue that the law is the law and must be executed as it is provided – that is according to Energy Regulation Act of 2006 which allows for private power production of up to 3,000KW upon authorization by Commission. This is a veiled cover to extend Kenya Power’s monopoly as sole electricity supplier. The Energy Regulation Bill tabled in 2017 is still pending in Parliament. This Bill is meant liberalise the sector but the intricacies involved and envisioned adverse effects on KPLC seemed to slow its enactment.

ERC should have looked at the common good, and the need for electricity for the fishing industry on Remba Island before pulling down the solar power plant. The island is inhabited by about twenty thousand people who do shifts in a 24-hour industry. The more rational approach would have been to give the operator a deadline to get his paper work done, or even surcharge him for failing to follow due process.

In October last year, Justice George Odunga of the Constitutional Review Division of the High Court ruled that IEBC had contravened the law in appointing of the 290 Constituency returning officers. He fell short of stopping the repeat Presidential polls slated for the following day, saying that was not one of the prayers for the plaintiffs. A few hours later, IEBC rushed to the Court of Appeal and the order was suspended as it had the potential to jeopardise a Supreme Court-ordered exercise.

Thus, a decision of the court regarding holding of a fresh presidential election had to be in conformity with Article 140(3) of the Constitution. The sixty days stipulated under Article 140(3) is sacrosanct and a decision having the effect of altering the stipulated date would not only be unconstitutional and thus invalid, but it is likely to plunge the country into a constitutional crisis leading to anarchy,” the Court of Appeal ruling read.

The Court of Appeal did not suspend the order because the Returning Officers were appointed legally but on the premise that the order may have negative effects on the social and political environment of Kenya if the constitution is not followed. To them, a small infringement of the law is not enough to stop a process that had been ordered by the Supreme Court in line with the Constitution.

In March 2016, the Supreme Court of Philippines ruled in favour of Grace Poe’s right to run for presidency despite her questionable citizenship. Grace was abandoned as a baby thus brought up by foster parents, and therefore lacked proof of a Filipino parentage. In Philippine law, the only legal basis allowed for natural-born citizenship is blood relationship – jus sanguinis. Under this rule, the determinant of natural-born citizen is the citizenship of one parent.

The case was unique because Grace Poe’s parentage was not known. The question then arose, is failure to establish evidence of parentage a failure of proof? The bench thus went for a liberal view by invoking probabilities. A foundling (abandoned baby), they held, on Philippine soil was likely to be of Filipino parentage. They further adopted the principle in international law that foundlings have citizenship rights to the country where they are found. The ruling thus went against laid down rules of citizenship to empathetically uphold the right of Grace Poe. The opposite, the court noted, would be punishing her for the mistake of her parents.

Regulatory Authorities thus need to have robust legal departments to look at special cases before their officers execute the letter of the law without getting the big picture. In the case of Remba Island power plant, plunging the whole island into darkness when the country is trying to push economic growth is defeatist on the part of the government on whose behalf ERC acts.

The win-win solution would have been to do a risk assessment, which is low on solar powered electricity, and advice on any measures the operator should take. Once this was done, the next step would have been to make sure he gets necessary permits required for the business. ERC and Kenya Power can then focus on many Kenyans who are yet to be connected to national grid. Pulling down the power plant when electricity penetration is yet to hit 100% is applying the law with a narrow view. If Remba Island would get another source of electricity immediately, then their action can be excused. The law was made to serve man; when it fails to do this then its application must be tempered with reason and wisdom.

The law is an ass and, just like the beast of burden, it cannot reason on its own. It relies on the direction of its master to bear his burdens. Every time you have to send the law into action, ask yourself, how it can relieve a social burden. Leaving people to bear heavy burdens as you ride the donkey beats the purpose of the law in the first place as a tool of service to humanity. ^

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