Revv22's Blog

March 31, 2013

Constitutionalism; First Step in Protecting and Implementing the Constitution of Kenya

The Supreme Court of Kenya has, in its verdict declaring the 2013 General elections valid, scored a big point for Kenya on the test of constitutionalism. The main petitioners, CORD and AFRICOG, have secured a win for Kenya by abiding by the ruling of the court.

When Dr. Willy Mutunga was nominated for the position of Chief Justice, one of the complaints by some parliamentarians and politicians was that he was an “activist”. They were afraid of Judicial activism. If you asked them then whether they could imagine the CJ being part of a bench that unanimously arrived at todays decision, they would tell you you are out of your mind.

Looking at the CJs and other Supreme court judge’s histories, it would be very easy to estimate where their personal opinio lie. However, the case was not determined on personal opinion, not even on what we think is right but on the arguments and merits that met constitutional thresholds. At least that is how I saw it as a layman.

Abiding by the courts ruling doesn’t mean that one agrees with it. I certainly did not agree with the ruling but will abide by it because abiding is a constitutional duty and the first way of protecting the constitution is by existing within its guidlines.

People have used the word ‘justice’ very lightly during the election petition. Every different person with their own intepretation till it has become relative. But justice, just like fact should be absolute. Its absolute nature can only be attained by using a shared and agreed upon guidline when searching for it. A shared rulebook that ensures we are all limited in the same way in our pursuits.

For the first time in this country, the rulebook had been drafted and agreed upon by Kenyans at the periphery, the middle  and the centre of power. The rulebook was the Constitution of Kenya 2010. With its promulgation, the political struggle shifted to its full implementation and protection.

Whereas delivering a wanjiku constitution during this generation was only made possible by the existence of a government of national unity that forced a government in power to have some level of goodwill, ensuring that it is implemented and protected is a fete that demands a vigilant and robust systems of cheking the government.

The first would have to be the political opposition. More than ever, a strong opposition is needed to be loud enough and make sure the country doesn’t slip into a majority dictatorship. The jubilee coalition managed to secure the speaker position both at the senate and the lower house of the national assembly with ease. This was an idicator that when it comes down to making acts and ammending those that only need parliamentary approval, the president wish becomes pretty much law.

At the moment, the President-elect’s priority task should be to unite a country split literally in the middle. His immediate impulse would be to invite the loosers in the election to work with him. My advice to the president would be to instead work to ensure that there is a vibrant opposition as he could do well without the kins of syophancy that our history has shown can develope in a majority dictatorahip.

One of the main questions now would be to carefully consider the form, role and ‘jurisdiction’ of opposition politics in a devolved system of gorvernance. With county governments having semi autonomy and county assemblies operating almost at full autonomy from central government and national assembly respectively, it would be interesting to see how opposition politics will shape up and create synergies between national and county agendas.

Its lack of jurisdictional limitations makes the civil society a more viable alternative when it comes to checking the gorvernment. Just like CSOs were greatly involved in fighting for constitutional change, the current generation of civil society has to be on their toes to ensure constitutional implementation and protection.

The president elect has, in his statement in response to the supreme courts ruling, called upon the religious leaders and CSOs to continue in their role in nation building. The president-elect has an interest and appreciation of Civil Society who got a place in his Jubilee coalition’s manifesto under the section, “Good Governance: Working with civil society”. In the manifesto, a Jubilee Government proposes to introduce a Charities Act under which CSOs would operate. Whether this is to be any similar to Ethiopias Charities and Societies Act 2009 which has rendered civil society in that country useless, only time can tell.

In order to protect the constitution and push for its full implementation, Civil Society has to ensure it beefs up its governance and political and civil rights component.

The third force in providing a system of checks has to be the Kenyan  citizenry who have in the past five years been taken through a combined course on international relations, international legal mechanism, constitutional making, democracy, conflict evasion, public relations among others.

It will be interesting to see if the citizens of our beloved country will guard the constitution they voted for in 2010 as jealously as they guarded the politicians they were voting for in 2013.

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1 Comment »

  1. continuously i used to read smaller articles which also clear their
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    Comment by ramadan kareem — July 28, 2013 @ 3:42 pm | Reply


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