BY Ahmednasir Abdullahi
It is easy to associate the ongoing Executive-Judiciary war with Uhuru Kenyatta’s promise to “revisit”, upon his contested re-election. The truth, however, is that the standoff is merely symptomatic of a great malady.
More than anything, it brings into question the efficacy of Liberal Democracy as a system of government. That politicians are suddenly alive to their diminished roles is also testament of a country that did not internalise the Constitution it overwhelmingly voted for. It may seem a harsh indictment, but how else does one explain Wanjiku’s lethargy in punishing errant politicians? Similarly, what would be the reason behind the large population of polished lawyers and admirable thinkers in a virtually impotent Senate?
Most of the power the Constitution donates to Wanjiku such as that to petition parliament, seek and obtain orders for the release of public information and the right to vote can be exercised singularly. Therefore, the question of capacity does not arise. It is not goodwill that inspired most senators to run for senate. If it were, there wouldn’t be any agitation for a stronger Senate or indeed, a shift in ambition to run for more powerful office.
There is also the unpopular question of whether the Committee of Experts gave us an imperfect document (of course, there isn’t a perfect constitution. But where there is a significant disconnect between the system of government a constitution offers and the socio- economic environment of the country, the constitution can only be bad, never mind its progressiveness). Pervious paragraphs demonstrate that the Constitution of Kenya, 2010, falls into this bracket. Elected leaders and citizens alike do not appreciate the Constitution, and where they do, they subconsciously resist it by refusing to align themselves to its tastes.
A perfect example is in how we collectively condone corruption and negative ethnicity in spite of Chapter Six. Resistance can also be inferred from how some crave authoritarianism and remain deeply conservative in spite of clear provisions on non-discrimination. Wanjiku speaks fondly of a progressive constitution that protects rights and diminishes presidential power, and longs for an all-action President like Tanzania’s Magufuli.
Resistance has become more obvious. Lately, there have been calls to amend the constitution. Raila Odinga is also on record calling for a reduction in the number of counties to make them more economically viable. Indeed, the Judiciary seems to be the last line of defence for the constitution.
Unity for progress or regress?
The much celebrated handshake, which promises unity seems a good thing until we remember that for so long, the opposition has been a formidable defence against government impunity. Without their vigilance, especially in the Legislature, who will call the Executive to order?
While the Judiciary aspires so hard to defend the Constitution, there is very little it can do especially when the Executive is the victim of its decisions. What the law on contempt of court offers is, at best, a collection of pious platitudes that cannot empower it to effect its decisions.
It neither has control over force or the purse strings. Until citizens within and without government can develop a sense of patriotism and fidelity to law and/or until the law on contempt can evolve towards more innovative punishments, such as civil damages, an independent legislature remains our only defence against government impunity.
In other words, a properly functioning Legislature should be able to punish public officers who defy court orders by instigating their removal. Such a legislature cannot be one that is unified in favour of the Executive.
By reaching out to the opposition, President Uhuru Kenyatta is merely following a path well-trodden by his predecessors. If we recall, the first Majimbo Constitution which ushered in independence in 1963 had elaborate checks and balances aimed at protecting the rights of minorities against the dominant tribes.
It also had a bicameral legislature which further checked the excesses of the Prime Minister (later the President). This notwithstanding, regional parliaments also had power to check the central government and an Opposition in KADU that prevented the ruling party KANU from raising the majority it needed to amend a constitution it was most unhappy with.
To have its way, Government set about wooing the opposition. By 1964, when Kenya became a republic, KADU politicians had crossed over, sealing the fate of the Majimbo Constitution. From then on, effort went towards centralising and consolidating presidential power, culminating in the imperial presidency the 2010 Constitution saved us from.
Even as we celebrate the handshake, let it not be forgotten that its “unity” that ushered in our darkest days in the first place. (