Disabusing the Trends in Politics and Constitutionalism

I start by congratulating the sworn-in President of Kenya, and his Deputy. This congratulatory message has a sour taste, so I'll not over-dwell in it. I had a discussion this morning with my colleagues, and we were all positive that the President will (or rather should) deliver in his responsibilities. Having secured presidency on a disputed means, the feeling of the people is distinctively ambivalent. Disillusionment. Some even hopeless, and can dare think that there will be marginalization of their geographical regions on the premise of political affiliation. These are not just aspersions, but going by the trend in the previous governments, it is a real threat worth of recognition. Kenya is generating from a totally inequitable society with the larger majority living below the poverty line. The stakes in these elections were high, and presidency was synonymous to justifiable allocation of the resources.It still was a do or die affair. We either get it and develop ourselves or lose it and go to hell. Do we not have a new constitutional dispensation in place, or are we still trapped in the obsolete laws?

The fathers and sons of impunity in one snapshot

The biggest transgressor of the Constitution became Kibaki. The man who had ascended to power on the platform of reforms. Kibaki furthered the trend Moi had aptly entrenched, by making almost all appointive positions in the favour of his kinsmen, the Kikuyu. Complaints have been made, and this is not the place to underscore the ills of the Kibaki regime in this matter. Nevertheless, we have to reiterate that the reason the people were reluctant to entrust Uhuru with the presidency stemmed from the fact that he would be the third Kikuyu to rule Kenya, which has only had four presidents. Three out of four in a span of fifty years is quite substantial! Why, can't the Luo, Luhya, Swahili, Kamba, El Molo...name them, rule? They say politics is a game of numbers, true. But our politics are to generate into a system that does not defy the constitutional provisions as to the national principles and values which emphasize on equality and equity under Article 10. With this trend, we shall see power changing hands between two communities, as the rest watch from a distance. This is not what we enacted on 27th August 2010.

Justice is as elusive as it was in the colonial era

Back to Uhuru. For the time I have been around, I have noted with concern that Uhuru is not a respecter of the constitution. Neither himself nor his deputy, Ruto, favoured the adoption of this law. The question of how someone can implement what they do not believe in in the first place is still begging. It is still fresh in our memories, when Uhuru was busy banging the table, terming unacceptable Raila's opposition to the capricious appointment of the Chief Justice, Director of Public Prosecution and Attorney General by Kibaki. He had neither consulted the Judicial Service Commission nor the Prime Minister as required in the Constitution. "This is not Acceptable," he was screaming in the front of the glaring cameras of the media. What was not possible? Someone challenging the authority of the president. This time he was sober. Forget when he insinuated that the devil from nowhere wanted him to relinquish his aspiration for presidency in the favour of one Mudavadi. An agreement signed by the both of them was reduced to a mere paper. That aside, this man does not believe in the constitutional checks and balances in the powers of the president. This man is now the president. How can Uhuru be tamed by the Constitution?

The Constitution without adherence thereto defines a paradox of a Constitution without constitutionalism, advanced by the late H.W.O. Okoth Ogendo and furthered by Mutakha Kangu, renowned constitutional authorities in Kenya. That the Constitution is just a paper. For academic purposes, and for the National Archives. The reason the people wanted a president who championed for the Constitution (and not the Kibaki-mentality, where all he cared for was a souvenir for Kenyans as a legacy ascribed to his name) was for adherence. That quest was lost, and now we have two of the biggest opponents of reforms in office. How did they get there? Apart from the assistance of the so-called tyranny of numbers in two tribes, the Supreme Court handed them the crown in total disregard of evidence tendered thereto. The Supreme Court has since earned the dubious distinction of being the court worst hit by litigational apathy. The Law Society of Kenya Chairman, Eric Mutua has even appealed to the members of the Bar to exercise restraint in the application of the ruling, and just fell short of calling it bad law. In the likely event that there will arise an electoral dispute in the future, everyone will be reluctant to go to this court, as justice was neither done nor was seen to be done.

Anyway, let us assume that they, by dint of the responsibilities vested on them, will avoid the temptings of power to subjugate and circumvent the constitutional provisions. But here we are, stuck with animosity and ill feelings. We remain hopeful that Uhuru will even pretend to respect, uphold and protect the Constitution. For some of us, that is all we have been left with in the circumstances. The hope for our posterity. That we shall have a Constitution, and constitutionalism will be inculcated in the system. Meanwhile, let the mourning for democracy continue.

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