BY TOM ODHIAMBO
As the debate rages in Kenya about the new laws intended to “strengthen” the government’s management of security in the country, those opposed to them argue that this is another case of undermining the constitution that Kenyans instituted in 2010. The “new” constitution was celebrated by all Kenyans as evidence of a shared vision of the future and proof that Kenya was entering a new democratic age. Yet, beyond the celebrations there was, and still is, little debate on why the Constitution is a landmark in the relationship between the governed and the governing in Kenya; it was simply assumed that because it replaced the previously “mutilated” one, the new covenant was revolutionary.
The story of the Kenyan constitution needs to provoke many questions among the ordinary citizens. What exactly is the constitution? And why have Kenyans spent so much energy, money and time drafting it, redrafting it, holding a referendum on it, paying people millions of shillings to help in implementing it and now debating changing it again? What does this little book of 18 chapters, written largely in legalese, mean to Kenyans? Does our constitution have the same meaning for all Kenyans in the 47 counties? Would it mean the same even in one county such as Migori with its mix of the Luo, Luhya, Kuria, Somali, Kisii, and Tanzanians etc? Does the dirt poor fellow living in the slums of urban Kenya really have the same rights as the few Nairobi-based elite, as the Constitution suggests? Of what help is the Constitution for the inhabitants of Kapedo, Lamu, Malindi, or Mandera whose lives are defined by the violence of the gun – owned by either the government or terrorists or criminals?
I am not sure that the monetary, human, emotional, social and discoursal investments in the so-called “new” constitution of 2010 have borne or will bear the same fruits for all Kenyans. The more I read and hear Kenyans discuss this constitution, the more I am sceptical about the changes it has brought Kenyans. Often, one feels that this constitution is another ruse, played on ordinary Kenyans by the elite – (re)presented by all shades of legal “opinion”, some utterly indefensible. This is why the publication of two books dealing with several questions relating to the new constitution and the legal profession in Kenya is worth noting. One is Kenya: The Struggle for a New Constitutional Order (2014) edited by Godwin Murunga, Duncan Okello and Anders Sjogren, and The Legal Profession and the New Constitutional Order in Kenya (2014) edited by Yash Pal Ghai and Jill Cottrell Ghai.
I briefly review some essays in the two books to highlight some of the issues that relate to the making of the constitution, its institution and prospects in future as well as the legal profession, which carries the responsibility of making, remaking and implementing the constitution. In the “Introduction” to The Struggle for a New Constitutional Order, Murunga, Okello and Sjogren and Paul Zeleza’s chapter, “The Protracted Transition to the Second Republic in Kenya” revisit the treacherous processes of making the constitution. Of course, the question that an outsider or a layman may ask is: why was it necessary to make a new constitution? The obvious answer is that the independence constitution was alien. Kenyan representatives may have been at Lancaster House when it was debated and indeed they implemented it, but its spirit was always colonial. Zeleza also outlines the difficulties of developing the nation in the postcolonial moment whilst relying on that inaugural constitution. Consequently, it was mutilated and rewritten largely in the vision of the ruling elite, with one of the tragic consequences being its use to justify dictatorship. But Zeleza also notes why we Kenyans should be happy about the latest constitution: “With the passage of the new constitution, Kenya has entered the mainstream of contemporary African constitution-making. This in itself is a welcome development for a country that is so vital for peace and stability in the East African region. It is certainly an achievement for its people in their age-old struggles for a constitutional dispensation that advances the long-cherished dreams of uhuru for self-determination, development and democracy.” One can only wait to see if Zeleza’s hope for Kenyans will come true.
What about the media and the constitution? Sammy Gachigua, in “Fuelling the Violence: Print Media in Kenya’s Volatile 2007 Postelection violence” points out the partisan role that the Kenyan media played in the pre- and post-2007 election troubles. It should be pointed out though that the media has a right to take positions on electoral issues, whether by supporting one candidate or promoting or rejecting another candidate’s electoral promises or party ideology. However, as Gachigua notes, the Kenyan media often didn’t bother about educating the reader or clarifying its reports or even contesting the claims of politicians, often “… leaving the public none the wiser. The end result of this pretensions and tendentious journalism by the mainstream media was the 2007 postelection tragedy. This less-than-objective or wishy-washy journalism was repeated during the campaigns for and in the aftermath of the 2013 general elections when the election results were contested by ODM. Today, the Kenyan media continues to present debates for or against sections of the constitution or attempts by the ruling party to alter it as merely a contest between the opposition and the government, but not as matters of national interest.”
Beyond the media, the other two topics in The Struggle for a New Constitutional Order that should lead to more research and debate are Wanjala Nasong’o’s “Revisiting ‘the Two’ Faces of Civil Society in Constitutional Reform in Kenya” and Godwin Murunga’s, “Elite Compromises and the Content of the 2010 Constitution”. Both papers discuss the role of civil society and the politicians in the making of the constitution. Nasong’o shows that the conventional argument that CSOs have two faces – a state of ambivalence that makes some CSOs “sit on the fence” on matters that directly relate to their very aims whilst addressing others – may not fully recognise the multiple possibilities for action and the power to effect change inherent on CSOs. What is significant in Nasong’o’s argument is that we need to acknowledge that civil society actors are human beings, often acting in their own interests; sometimes representing the interests of non-stated groups or acting in the name (and not necessarily spirit) of the society. But, he emphasises, we can’t gainsay the contribution that CSOs made in the making of the new constitution right from the one-party rule days of KANU in the 1980s. I would say, though, that I find it worrying that when a critique of the civil society is offered, the common people, on whose behalf the civil society speaks, or who the CSOs lead, are hardly discussed.
Murunga’s discussion of the elite compromises in the making of the new constitution raises the same question as that raised by Nasong’o: that of agency. Murunga reminds us that if we have problems today with the implementation of the constitution it is probably because it was a child of give-and-take between politicians and CSO elites when made. He points out that the progressives – by which he means the CSOs and related interest groups, and I suppose the majority of Kenyans – pushed through the bill of rights and devolution in the constitution whilst the conservatives got the executive presidency, as one case. But Murunga warns that although the progressives managed to get such worthy concessions, the conservatives have been effective in using the executive authority to hamstring the working of the county governments.
I think the abiding force The Struggle for a New Constitutional Order is summarized by Yash Ghai’s essay, “Constitutions and constitutionalism: the fate of the 2010 constitution”. Ghai makes a distinction that gets lost all the time Kenyans discuss the “new” constitution when he restates the meaning of constitution and constitutionalism. “The constitution is a set of rules and institutions that regulate the government of the country. Constitutionalism is an ideology based on certain values, procedures and practices.” This distinction is significant because a country can have a constitution without practicing constitutionalism. Kenyans have to continue pressing for constitutionalism, for a limit to the government’s arbitrary behaviour such as in matters to do with expenditure, security and state employment. And it is Ghai’s essay “The Attorneys-General: Upholders or Destroyers of Constitutionalism” which carries the spirit of The Legal Profession and the New Constitutional Order in Kenya. This essay, although brief, shows how the attorneys-general since independence have been caught up in the dilemma of being “advisers” to the government or defenders of the citizens’ interests. The tricky situation in which the attorney-general works expects him/her to advise the government on matters of law but at the same time guard against the excesses of the same executive. Yet in Kenya the AG is a part of the executive as he/she sits in the Cabinet. To whom is he/she expected to be loyal? Ghai raises pertinent questions on the Kenyan AGs since independence, showing how some of them have undermined rather than promoted the constitution. In short, if the Kenyan constitution has been/is trampled or mutilated or abused to serve the interests of the elite, it would be interesting to speak to the AGs.
Willy Mutunga reflects on the 2010 Constitution in an essay “Its Vision of a New Bench-Bar Relationship.” Indeed, the new constitution has thrown up a range of “issues” between the bench and the bar, especially considering the “purges” in the judiciary, the constitution of the Supreme Court and the many reforms in the legal sector. Mutunga’s essay is an optimistic take on how the new constitution and the legal profession can play a leading role in “public interest litigation”, enhance “access to justice”, contribute to “legal education”, etc. The fact that the President of the Supreme Court of Kenya is willing to state his views on the constitution should be inspiring enough not just to legal scholars, lawyers or activists, but also to ordinary citizens and all Kenyans interested in the rule of law in this country. But again, like many of the essays in these two books, Mutunga’s views are simply raise hope; what we need are men and women who will institutionalise constitutionalism.
I find PLO Lumumba’s essay “The Legal Profession and Crisis of Ethics” quite compelling. Lumumba argues that the legal profession in Kenya has existed under a cloud of distrust by ordinary Kenyans. He writes: “What plagues the legal profession is a disease that masquerades as “professional misconduct” and is often described as conduct that includes disgraceful or dishonourable conduct incompatible with the status of the advocate.” Lumumba both theorises the “crisis of ethics” from historical and contemporary positions but also provides practical cases and examples of the state of what Paul Mwangi has called “The Black Bar” in Kenya. However, Lumumba doesn’t show exactly how the sins of the Kenyan legal profession can practically be addressed. One can only hope that now that he is directly involved in the postgraduate training of lawyers in Kenya, he will help in producing more ethical lawyers in the country.
Patricia Kameri-Mbote is probably the right person to speak on “Legal Education and Lawyers” in Kenya today. As the Dean of School of Law at the University of Nairobi, the mother law school in the country, Kameri-Mbote has enough insider knowledge of the quality of the Kenyan law curriculum. However, her essay appears more as a survey of the state of the law curriculum in Kenya instead of an exegesis on the nagging question in regard to the legal profession in Kenya: the quality of law education. Many commentators, scholars and even lawyers themselves have decried the poor quality of recent graduates from Kenyan law schools. This is a question that needs to be addressed urgently and someone of Kameri-Mbote’s stature is the right person to provide new perspectives on what ails the training of lawyers in Kenya today. Is the problem the curriculum in the law schools; is it the quality of the teachers; is it the postgraduate training at the Kenya Law School; or is it the general aptitude of the lawyer-trainees? Or is the main problem to be found in the broader pedagogy beginning from elementary school?
In all, these two books are most appropriate for those with an interest in matters of the Kenyan constitution, constitutionalism, the legal profession and the general relationship between the law, the government and the ordinary citizens. In other words, The Legal Profession and the New Constitutional Order in Kenya, and Kenya: The Struggle for a New Constitutional Order begin to provoke, in very interesting and comprehensible language, and spirit the question of the relation between the state and the mwananchi as mediated by the power reflected in the constitution.