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The Constitution without Constitutionalism

The late Prof. Okoth-Ogendo, known by his peers as the guru and respected across the board, wrote an inspiring article, “The Constitution Without Constitutionalism”. None of us today has ever questioned the constitutionality of the constitution.

The Republic of Kenya has been praised for its progressive constitution of 2010 that marked a big and gigantic change in the socio-economic development agenda. However, it would serve the purpose to learn that the need for the new book of law was felt by all citizens when the former constitution became a tool for oppression, exploitation, and dictatorship.

Here we are. In less than a decade of the new book of law, we speak of failure to implement it. What has gone wrong all a long? What has changed? Why all of a sudden our celebration of the new book of law has turned to be our saddest moment in life? When in January 2018, the government initiated a crack down on media for reporting the opposition orchestrated swearing in of their leader, Hon. Raila Amollo Odinga, on 30th of February, the government went on record of switching off the media from public views. On the contrary, those who were connected to the internet could still receive and give information on social media. Following the court order lifting the government switch-off, the government remained adamant to switch on the media – 3 main TV channels, KTN, NTV and Citizen. This included some FM radio stations. Some journalists were threatened with arrest while some where to be questioned and they were taken to court only to be freed for no genuine offense.

At the same time, the lead opposition coalition NASA had made its resolution to go ahead and swear in their leader as the people’s president, a move that sent shock waves as some legal minds saw it as a treasonous act. The executive warned the opposition of the move terming it illegal and unacceptable. What made matters worse was the arrests of elected leaders or MPs. The NASA supporters were threatened by the executive that showed that might is right. The opposition that defied the government declared that the plan of swearing in their president would go on as planned and they cited Art. 1 of the Constitution that gives the sovereign powers to the people and not the government.

As things stand now, the constitution is being cited by both the government and the opposition, both of which claim to obey it. Extrajudicial killings coupled with illegal arrests and court contempt issues emerged as the government declared crack down on the media and the opposition. The same government dismissed any possibility to dialogue with the opposition leaders.

It is not enough to have written constitution. What matters is that one must understand that any constitution needs both the legality and legitimacy for it to stand. The constitution of Kenya has all the principles of legality but lacks legitimacy. Remember that, this is the constitution that qualifies the maxim, the winner takes it all rule. The loser in any presidential race in Kenya can only have a role of opposition leader without any portfolio, a thing that puts the loser into a passive position of power. The president has all the powers and government control and it has no place for the opposition.

Another loop-hole in the current constitution is that, once a president has been declared the winner by the IEBC, there is a time of 14 days in which any person can move to the Supreme Court to challenge the results or the win. Once the time elapses, the winner is de facto presidential elect pending the official swearing in and assumption of office. The president elect then takes oath of office before naming the cabinet. The named cabinet shall be scrutinized by Parliament before the official appointment by the president.

Lets assume that the government disrespects the constitution and moves ahead to block the opposition from its role and rights, what should happen? If the executive frustrates the judiciary and muscles the legislature, what should happen? Such questions have no answers in the current constitution.

As much as the constitution is valid and must bind on every citizen, both the governor and the governed, it stands to be judged under the parameters of legitimacy. It cannot stand against the will of the majority. It should be seen to provide solution to major challenges the society is faced with. It must as well handle political crisis in one way or the other. If it cannot provide solution to inclusive government, equal opportunities and other challenges, then it shall lose legitimacy. If the Bill of Rights entrenched under Chapter 4 is not observed by the government, then the constitutionalism is far from reality. In this scenario, the constitution remains as a written document yet it is not respected and implemented.

What happens to those who disobey it and they are in the government? If nobody is subjected to the due process of law, then the constitution lacks the constitutionalism. There is so much that one can say about the topic already initiated by Prof. Ogendo but seemingly, the situation is getting worse. The constitution has no provision of how to impeach the president or how to engage into national dialogue. Yet it has alternative dispute resolution that is spelled out well. But, all this needs political good will.

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About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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