Our Constitution is a monumental break with the past

By Tioko Ekiru Emmanuel

The murder of Chris Msando, who was, until his death, Head of ICT at the Independent Electoral and Boundaries Commission (IEBC) for his stand on electoral integrity, a week before the 2017 General Election, was a clear bouncing back to the dark Nyayo era. The autopsy report established he was severely tortured and then strangled to death. His death is a replica of past cases, including the political assassinations of JM Kariuki, Pio Gama Pinto, Thomas Mboya, Father John Anthony Kaiser, Robert Ouko and Odhiambo Mbai.

A consideration of Kenya’s political history reminds us of the horrors of the totalitarian Nyayo regime. At the heart of this reign were full-scale human rights abuses that included the detention, torture and murder of those who dared challenge government misrule.

It is true to say that we are emerging from a period of our history during which the humanity of the majority of the inhabitants was denied. They were treated as not having inherent worth, but as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. They were denied recognition of their inherent dignity.

Kenya’s criminal system has often been complicit, by failing to uncover those behind these mysterious deaths, often owing to poor investigations methods, official conspiracy to cover up the crimes, and lack of forensic investigation. Witness intimidation is rife. In order to ensure credible investigations, the country therefore requires formidable legal and institutional mechanisms for witness protection and impartiality of criminal departments. It must be understood that failure by the government to bring perpetrators’ of the recent of these barbaric acts into book is a deliberate intention to subvert our democratic gains. An election contest is not a field of life and death; rather it should be a game to be resolved at the ballot.

Quest for a constitution and overcoming dark legacy

Kenyan have undergone decades of traumatising periods before the arrival of the new constitution as their promise future. The struggle was not just for a new document but also for a new egalitarian society cemented on social justice, human dignity, and equality, rule of law and respect of human rights. This quest for reforms was premised upon two critical pillars: first, the reforms were intended to transform the political governance structures from authoritarianism to a culture of democratic decision-making where all exercise of power is justifiable. Secondly, reforms were aimed at transforming the economic and social structures that entrenched endemic poverty and pervasive inequality, into a fitting and caring society for all.

The promulgation of the Constitution on in 2010 was a decisive break from the past monumental ills orchestrated by successive regimes. Notably, as Ackermann writes, there can be no final constitution because it will be up to the people themselves to continue to transform their country as guided by the great ideas of dignity, equality and justice. He further stated,

A transforming Constitution such as ours will only succeed if everyone in government as well as in civil society at all levels embraces and lives out its vales and its demands. It will only succeed if restitutional equality becomes a reality, and basic material needs are met, because it borders on the obscene to preach human dignity to the homeless and the starving. This must, however, be achieved in a manner consonant with the human dignity of all.

Needless to say, when the Constitution came into being, a new country with promising destiny was born. The culture of status quo was declared impotent on the face of a nation. Given the background described above, the new document was intended to remedy mischief and redress the legacy of a horrific past, especially a multiplicity of governance problems revolving around centralised power, which was used as a perpetual tool to marginalise the majority of the people, as individuals, communities and regions. Upon reflecting the historical context on which the constitution was made, CJ Mutunga (as he then was) in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR underscored the fact that there is no doubt the Constitution is a radical document that looks to a future that is very different from our past in its values and practices. It sought, he said, to make a fundamental change from the 68 years of colonialism and 50 years of independence.

It can be argued then that our Constitution has reconfigured the way the affairs of the state should be conducted. The vowed goal of the law is to institute social change and reform. However, the forces of the dark era intend to bend the aspirations of Kenyans day by day. Their intention is to take the country back to those bastard routes of arbitrariness and unequal operation of the law. The Chris Msando murder is a mysterious return to jungle days of mistreatment. It is a violation of our communitarian ethos and institutional dignity as well.

No human being is entitled to treat another like a beast; it should be understood that our dignity and human existence depends on relations with other people. Judge Alex Kozinski of the US Court of Appeal for the Ninth Circuit had this to say when writing on human dignity:

The dignity of human life comes not from mere existence, but from that ability which separates us from beasts – the ability to choose – freedom of will. When we say that a man – even a man who has committed a horrible crime – is not free to choose, we take away his dignity just as we usually as we do when we kill him.

In this sense, Kozinski viewed the essence of life as a fundamental value and it should be an asset to be protected in various spheres.

Value-drenched system

The Constitution of Kenya is said to embody a value-drenched system as evidenced by Article 10. This provision establishes a State bound by the fundamental values and principles that ought to provide stimulus goals and the direction a nation must navigate. Similarly, the Constitution, by dint of Article 28, recognises the inherent nature of human dignity that resides to every person and the right to have that dignity protected. The need to respect and protect human dignity is the essence of human rights discourse. The ultimate purpose of human rights protection is to safeguard and secure the intrinsic value of individual dignity. Human rights, therefore, are demands or claims individuals or groups make that are essential for individual well being, dignity, and fulfilment – the deprivation of which is often considered an affront to justice. The right to human dignity reflects the “recognition that a human being is a free agent, who develops his body and mind as he wishes, and his social framework to which he is connected and which he depends. Human dignity is therefore freedom of the individual to shape an individual identity. It is the autonomy of the individual will.

In the Israeli constitution, the right to dignity comprises four elements. The first is the dignity of each human being “as a human being.” This is regarded as the source of viewpoint that human dignity includes the equality of human beings. Discrimination infringes on a person’s dignity.

Second, human dignity is a person’s freewill. This is the freedom of choice given to people to develop their personalities and determine their own fate.

Third, human dignity is infringed if a person’s life or physical or mental welfare is harmed. The death penalty contradicts human dignity. Life imprisonment with no possibility of release contradicts human dignity.  Humiliation, blows, confiscation, and forced labour – all these infringe on human dignity. Human dignity is infringed when a person lives in humiliating conditions that negate his humanity.

Fourth, human dignity assumes that the individual is not a means for satisfying the needs of another person. Every person is a world unto himself, an objective unto himself. It assumes a society predicated on the desire to protect the human dignity of each member.

It can be said that human dignity is a central objective – a normative value system established by the Constitution – perhaps the pre-eminent value, and in line with other post-World War II constitutions, such as the German Basic Law (GBU). Article 1 of the GBL places human dignity (“Menschenwiirde”, or “human worth”) at the very core of its protection of fundamental rights, and this Article is made immune from any form of amendment.” This was a direct reaction to, and an outright rejection of, the totalitarianism and inhumanity of the preceding Nazi period encapsulated by the phrase: “You are nothing – your volk is everything.” The South African Constitution has reacted similarly, and thus treats human dignity as a grundnorm.

Ronald Dworkin, quoting John Rawls in part, asserts the entitlement of everybody to equal respect is “…’owed to human beings as moral persons’, and follows from the moral personality that distinguishes humans from animals”.  Rawls sees “moral personality and not the capacity for pleasure and pain as the fundamental aspect of the self “. In the context of the constitutional state, or the state fully founded on the rule of law – there is no fully equivalent expression to that of the German “Rechtstaat” – human dignity is therefore the acknowledgment, respect, and protection due to all people, both from the side of the state because of the human’s unique qualities of self-awareness, autonomy, and inestimable and incomparable worth.

In the famous landmark South African case of S V Makwanyane Justice Catharine O’Regan, in appreciating the essence of intrinsic value of human worth, expressed herself as follows:

The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right is therefore the foundation of many other rights that are specifically entrenched…. Respect for the dignity of all human beings is particularly important in South Africa, for apartheid was a denial of a common humanity. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition of and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution it is the dignity and importance of the individual which is the essence and cornerstone of democratic government.

The right of respecting human dignity resides on the foundations of one to being human.

Conclusion   

Just like South African post-apartheid constitution and post-Nazi Germany Basic Law, the post–authoritarian 2010 constitution of Kenya represents a total departure from a hitherto deeply divided society characterised by untold suffering, conflict, gross violations of human rights and injustice. The new constitution is a “historic bridge” from the dark past to a new future founded nation.

The gruesome murder of Chris Msando is one of the worst violations of human rights in Kenya’s recent history, and a clear return to the dark days of yesteryears. ^

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