By Christabel Mideva Eboso
In August 2010, Kenyans gave themselves what has come to be referred to as a transformative and progressive Constitution. This was the culmination of a long journey that started before the Kenyan state was born, through independence and through costly struggles to shape our society.
The Constitution of Kenya 2010, summed up, was our shared, unique history as a society, and our shared aspirations for our nation. Our Constitution gave life to long known but ignored principles while introducing previously only aspired-to or thought-of values.
There have been different arguments about what the framers and drafters of the Constitution might have intended when they included certain provisions – I try to ignore such a view when discussing our Constitution despite the rules surrounding the interpretation of ours laws. Our Constitution was given to us by a popular majority vote, and it remains in force through its continued popular support. This is in contrast to most other constitutional democracies whose constitutions were put in place not by the people directly, but through their representatives. Therefore the right question in our setting would be to continuously ask, “What is the place of Kenyans in respect to their majority and popular vote in interpretation or construing the Constitution of Kenya, 2010?”
This view creates a further question as to who really should defend the Constitution. The Constitution pronounces itself in Article 3(1) thus: “Every person has an obligation to respect, uphold, and defend…” My deduction of Article 3 is that we all are defenders of the Constitution of Kenya, even when we do not claim or exercise state authority. A lot to do with our Constitution has been reduced to legalese and legal interpretation that sometimes removes the people themselves as the actual owners and first defenders of the Constitution. It leaves the Kenya Courts exclusively as the “defenders” of the laws of Kenya, when in fact, the People of Kenya are collectively the real owners of the Constitution. This is to mean that the courts have often put the drafters at the centre when interpreting the Constitution while intentionally ignoring the understanding of the majority of Kenyans who voted in favour of the Constitution. The Courts tend to give a lot of emphasis on the drafters at the expense of the Kenyans, when in fact, the role of the drafters ended the moment Kenyans went into a Referendum.
The Statement, “rule of law,” has stopped having its meaning and has become synonymous with rule by courts or by the Judiciary. Basic layman constructions of our Constitution have been reduced to legal-text interpretations that usually are as many as there are opinion holders – and, typically, as accurate as the judicial officer’s pronouncing. This takes away the shared aspirations, collective history, the struggle we had, and the understanding we had in 2010, to replace it with an individual’s ten to 15 years in law-school or practice at the bar or the bench. This is not to take away, in any way, the role that courts have played in safeguarding our Rights.
The era of COVID-19
The Constitution has specified the various roles each state organ and individual plays in its defence, and the ultimate fidelity to their roles is the utmost testament to its defence. Our Constitution, if not for anything else, is known for its Bill of Rights. It has been argued that without our Bill of Rights, our Constitution would lack spine. As all other chapters represent largely the journey to either give life to, to protect or limit the enjoyment of the rights and freedoms granted in the Bill of Rights, our Constitution jealously guards against their violation. Covid-19 presents to us a unique situation that may seem unexpected in the realm of our constitutional order and perhaps unprecedented in our country.
Covid-19 impacts profoundly on our enjoyment of freedoms and, most importantly, on the need (arguably) to the limitations of these freedoms. Our Constitution, however, I dare say, was made for these kinds of scenarios. Thus any restrictions of the rights and liberties must be in line with the provisions of the Constitution.
Article 25 of the Constitution provides for non-derogable rights and freedoms, which for all purposes, may not be limited. It then proceeds to provide for other rights and liberties that may be restricted. It further provides for the circumstances for such limitation under Article 24 – they must be reasonable and follow the criteria the law sets in determining such reasonableness.
Further, it is only under Article 23 of the Constitution in the Defence Bill of Rights that the courts have been given the power to “hear and determine for redress a denial, violation or infringement…” and grant appropriate relief. Nowhere else have the courts been given more far-reaching powers in our Constitution than in upholding and defending the Bill of Rights.
Covid-19 presents a unique situation. Having been declared a pandemic by the World Health Organization (WHO) and a public health emergency in the Public Health Act, the state moved to give specific orders to contain its spread. These orders had certain constitutional implications. Among the questions raised include ones on the separation of powers between different organs of government, problems regarding the exception of certain persons based on their role in the constitutional order, issues on the implementation of the order, and even its validity owing to its far-reaching limitation of rights. One that stood out the most was the initial, abrupt shutdown of the courts. Upon declaration that government entities would mainly work from home, the Chief Justice announced that courts would initially close. At the time, it was unknown for how long. The President also announced a nightly curfew and a ban on social gatherings.
In all these, it is not lost to us that not all rights are absolute. We take a look at the limitation of rights while considering the extent to which violation occurred or not. The non-derogable rights that have been brought to question are the freedom from torture and cruel, inhumane or degrading treatment or punishment, and the right to a fair trial.
The implementation of the orders issued by the state was initially marked with police brutality. The initially en masse closure of courts without putting in place measures to ensure justice was served or that courts resumed immediately marked violations to the right to a fair trial for all those whose cases were ongoing and those who may have wanted justice from the courts. Perhaps the one area where the closure of the courts hit hardest on constitutional order was the difficulty in seeking the courts to uphold and defend those rights where there was a violation.
Finally, our Constitution had in mind situations where there may be widespread need to limit fundamental rights and freedoms; it framed such a situation as a state of emergency. This was designed in such a manner that there would be constant supervision of the order by both Parliament and the Judiciary (Supreme Court) to ensure the test of reasonableness is upheld.
The government cannot purport to force ambiguous, unreasonable laws and restrictions that go against the face of the Bill of Rights. It is further disheartening that the Court in Petition 120 of 2020, “Law Society of Kenya vs. the Inspector General of Police & 4 Others” eKLR failed to declare the same unconstitutional and instead chose to play safe by using coy language, where it should otherwise have given the Bill of Rights a resounding place by declaring the said directives unconstitutional.
It is on this very ground that I conclude that a Public Health Act /Public Order Act cannot purport to limit rights and freedoms so broadly without undergoing the supervision granted by the Constitution for such a scenario. As such, the government’s directives ought to be declared unconstitutional as the same do not uphold the Bill of Rights, which form the core of any Constitution-bound state. Further, the Courts must put Kenyans, who voted for the Constitution to serve them, at the centre of its interpretation.
The Courts must give Kenyans interpretations and decisions that fulfill their aspirations and expectations of a transformative constitution. We must move away from providing the Constitution’s drafters an elevated role when that ended once Kenyans approved it.