Exercise of sovereignty only legitimate when done in accordance with the law

Exercise of sovereignty only legitimate when done in accordance with the law
By Enock Wabwoba In the recent past, we have been treated to assertions, especially from the Opposition, Cord, that sovereignty belongs to the people and therefore the action of physically storming the IEBC offices with intention to eject the IEBC commissioners from their office is part of the exercise of the people’s sovereignty. It is against this background that I write this. It is true that sovereignty in our Republic belongs to the people, and can be exercised directly by the people or indirectly through elected representatives. That sovereignty of the people as was pointed out by Justice Ringera in the ‘Njoya case’ is primordial; it is inherently vested in the people. It is the basis of the creation of the Constitution, and cannot therefore be conferred or granted by the Constitution. Indeed, it need not be expressly textualised. If the makers of the Constitution expressly recognise the sovereignty of the people and their constituent power, they do so only out of caution. The Constitution being the binding contract between the individual sovereigns who gave up their sovereignty to the state goes ahead to prescribe how the people can exercise their sovereign power. Including how to change its (the constitution’s) prescriptions on the exercise the sovereignty. It then flows that the exercise of that sovereignty is to be guided by the constitutional instrument as amended at any particular time. Out of the recognition that exercise of this sovereignty arbitrarily leads to enormous challenges and may stall an entity, democracies choose to regulate the way it is exercised, and prescribe this in the constituent instrument of the society, mostly the constitution. As Professor Nwabeze expresses in his book ” Presidentialism in Commonwealth Africa ”,the concept basically comprises three elements ; first is the power of the people to constitute a frame of government .This entails power to decide the system of governance and the structures of the government. This is often done by establishing those structures/institutions in the constitution. The Constitution establishes such institutions. Should Kenyans feel the frame they established does not serve them well, they still have power to change the form of this frame by way of amendment. This process too must be guided by the subsisting frame. Secondly, there is an element of the power of the people to choose those to run the government. This power is practiced by electing people to government to recall the elected representatives. The “frame ” provides for how this can be done and if there is need to change the way this power to choose who to run government and its institutions, the first power is resorted to so that the frame reflects the people’s changed position. The third element is the power to be involved in governing. Should “the people” feel left out /not involved in governing, the “frame” has recourse for them again. Usually, this is done through the courts which will enforce this power so that decisions made without involving people (either directly or through their representatives) are annulled. Any exercise of that sovereignty by a person(s) that is not in consonant with the constituent instrument becomes extra-constitutional and therefore unconstitutional. Civil disobedience, coups and revolutions are some of the ways this is done. As and when those attempts succeed, and the new system becomes effective, the attempts remain an affront not only to the concept itself but also to the constitution which dearly seeks to protect the principle.

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