The President is treading a dangerous path; he needs to stop. He should not cloud his judgment with his open dislike for the courts.
Our Constitution was meant to provide solution to historical social and governance problems. Overwhelmingly passed at a referendum, it puts all power on the people to be exercised in accordance with itself.
On face value, ours is a progressive constitution. Yet, as recent events reveal, there are massive problems both in construction and actualisation.
It is not true to say, as many have, that the law is innocent, that ours is simply a political crisis and not a constitutional one, and that the crisis could have been avoided if constitutionalism was ingrained “in the DNA of state actors”.
Indeed, one might ask, why is it that actors have found it difficult to adhere to a constitution they jointly and freely negotiated and overwhelmingly passed? Or, while the solutions envisaged in the new constitution are undeniably novel and what the actors asked for, why is it that “unconstitutionalism”, when demonstrated by the governors, is not punished by the governed?
Both the governors and the governed (citizens) are assigned duties and are accorded some powers by the Constitution. Citizens’ failure to exercise these powers accordingly is just as unconstitutional as it is a similar failure by the government.
In promulgating the Constitution as it is, citizens foresaw the possibility of government departing from the demands of the Constitution and thus bestowed upon themselves the role of the ultimate caregivers. This power was to be exercised among others, through the ballot, public participation, public interest litigation, citizen action, recalling elected leaders, peaceful protests, proposing and pushing for amendments to law.
It’s therefore not true to say that citizens are powerless in the face of corruption, bad governance and blatant defiance of the Constitution by the ruling class. Unfortunately, they haven’t taken advantage of these great powers.
As Karl Loewenstein posits in Political Power and Governmental Process, to be a good constitution, the decisive criteria should be the degree with which political reality conforms to the norms of the constitution. A good constitution should sufficiently reflect the general norms of the society it governs and be understood by the people in it.
It is not enough that a constitution is progressive; the people must appreciate their previous problems and be fully aware of the effect of changes they are introducing. In short, enactment of good law does not guarantee effectiveness. Such a constitution he calls normative.
Legitimacy of the Constitution
A constitution like ours, where pre-existing socio economic conditions prevent the law from being applied faithfully regardless of the intent of the power holders, is a nominal constitution. It is an inferior work of copy-and-paste particularly prevalent in former colonies and feudal-agrarian societies like ours.
In elective politics, universal suffrage under Article 38 means that one must appeal to the “primitive” masses if they are to hold political office.
For presidential elections, where the winner has to claim a definite majority of all the ballots cast, he can only do so by forming tribal alliances. This elevates the importance of often-corrupt tribal kingpins, undermines constitutional values and perpetrates the culture of tokenism.
Voters too are tribal as tribe in a primitive society like ours is not only an extension of family and therefore demanding of loyalty, but also a way towards socio- economic emancipation. Ethnic bias prevents citizens from exercising proper oversight (Benedict Anderson, 1983 and Mwangi Kimenyi, 2008).
Liberal Democracy, the system we are grappling with, while best, is actually counterproductive in a rural society such as ours. The upheaval is clear indication that time has come to rethink our constitution. Particularly we should remodel our Liberal Democracy.
Although they are a critical ingredient, on their own, good laws are not enough for the problems our society faces; we must also ideologically shift our political processes. For example, will the recommendations of the BBI task force yield a different outcome just because they are new recommendations? No.
As it is, the BBI report offers nothing new and substantive to warrant a constitutional amendment through a referendum. What it is is a backdoor for politicians to share power and political positions.
Kenyans must discipline themselves to reject ‘good enough’; it is never okay to accept and move on. Au contraire, we must rise to the occasion and engage soberly and constructively. Most importantly, we must amend our attitudes.