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I find it felicitous to explore this topic because of our current constitutional mood -a surrounding invigorated by discussions on constitutional amendments, and its efficacies, viability and appropriateness… As a country, we’ve had three constitutions which have been significantly distinct in letter. Both the 1963 and 1969 Constitutions were amended in pursuit of an autochthonous(homegrown) constitution, one that would solve our African constitutional problems. The Constitution of Kenya 2010 came as the beacon of hope to millions of Kenyans: the silver bullet to eradicate impunity. However, the effectiveness of these instruments is subject of debate until now. How then can we realize the efficacy of our Constitution? Well, Professor H.W Okoth Ogendo advanced arguments on ‘constitutions without constitutionalism’ and that could be where our loophole lies. Consistent observance of the rule of law should be cultured to realize constitutionalism. And I choose to narrow down the law to the constitution because it is the normative order that provides the framework for the operationalization of all other laws.
To contextualize the Rule of Law in Kenya, we must first conceptualize it. This concept appears quite simple yet I find it very ‘promiscuous’ and nebulous especially in the contemporary constitutional dispensations. Is observance of laws tyrannically formulated by dictatorial regimes synonymous with upholding the Rule of Law? Aristotle problematically remarked that laws should be the final sovereign. What about the laws made illegally? Maybe he should have distinguished the nature of the pertinent laws. Do laws have universality? Debatable. Thomas Aquinas postulated that divine inspiration and humanity ascertains the natural order of God through which the Rule of Law is reflected. Naturalists’ perspective is relatively simple in that regard. However, Jeremy Bentham (a utilitarian), described the Rule of Law as ‘nonesense on stilts’. Bentham’s position is very problematic from an afro-kenyanist perspective as I will address in this article… A.V Dicey expositions can best guide us in gauging the state of the Rule of Law in our country, despite having some untenable features. Dicey provided three principles to act as metrics for determination of the Rule of Law in a state: predominance of regular law, equality before the law and safeguarding individual rights. I will problematize the state of the Rule of Law in Kenya along these three prongs.
My insular but contextualized understanding of the concept of the Rule of Law in Kenya is that the biggest enemy of the Rule of Law is the existence of discretionary powers vested in any office of the land. It is, therefore, not a surprise that our legal documents abound with pages of written laws. A country that respects the Rule of Law does not need hundreds of pages of written laws to regulate its elections… We lack the culture of constitutionalism. Senator Orengo SC posited, and I agree, that Kenyans always tend to run from the law. We always seek to exploit the loopholes in our laws to the detriment of the spirit of the laws. This is the argument that defeats the perspectives of Utilitarians like Bentham and John Locke. There is great risk in vesting residual powers in the Executive arm of government in Kenya because they are susceptible to abusing it. Therefore, there should be specific grant of all powers through definitely enumerated laws in Kenya. Delegated or usurped (even legally usurped) legislative mandates and unlimited administrative jurisdiction have manifested the worst pictures of arbitrary power in exercise of discretion. For example, President Uhuru Kenyatta created the office of the Chief Administrative Secretaries in 2018 pursuant to the powers vested in the Presidency through Article 132(4)(a) without any public participation, because such a condition is not expressly demonstrated in the Constitution. Can we say this was intelligence without passion and reason free from desire? It was a flagrant Executive fiat but with a constitutional sanction. What about when the President (H.E Uhuru) refused to appoint the 41 judges in 2019, claiming reviewing powers which have not been clearly expressed in Article 166(1)(b) of the Constitution? Were the decisions of the court in the cases of LSK v A.G & Another and Adrian Kamotho Njenga v A.G & 2 Others that the President’s role in light of that Article was merely ceremonial lawful? That he should blindly append the seal of approval after the Judicial Service Commission has presented to him their recommendations? Maybe the biggest problem is lack of adequate, precise and meticulously enumerated laws to cover all factual scenarios now that we have resigned to the fact that we always run from the law. Can law makers contemplate all factual scenarios? Unrealistic. What recourse then does the Executive have whenever they feel that the decision of the court is unfair, unjust or even unlawful? Disobedience?
While the Constitution of Kenya has not clearly defined the co-equality of the arms of the government, the doctrine of separation of powers clearly stipulates the distinct functions of each arm of the government in regard to making laws, implementing the laws and interpreting them. The argument advanced by some people that two of the arms of the government can assume the powers of the third arm without constitutional definition falls flat as held by Professor Ben Sihanya. Professor J.B Ojwang’ posits that the ultimate arbiter is the Judiciary. The entities of the Executive arm of the government must equally be subjected to the law in light of A.V Dicey’s second principle –equality before the law. The obedience of court order is, therefore, not a prerogative but an obligation of all entities, natural persons and juristic persons within the jurisdiction of the law. Under what authority, then, does the Executive find power to disregard court orders? My answer is ‘ambiguity’. In a state where there is no political will to promote the Rule of Law, more laws are required to enforce the Law. This explains why Kenyans always push for referenda and constitutional amendments through various avenues. And it’s not by coincidence that we have a whole chapter of our constitution dedicated to leadership and integrity, and national ethos still animate the present constitutional amendment discussions. Maybe it is high time we accepted the want of requisite values for constitutionalism in our society and developed a more rigorous mechanism of realizing the same. But doesn’t that defeat the purpose of the Rule of Law?
A.V Dicey’s third exposition holds that the law of the constitution is a consequence of the right of individuals as defined and enforced by the courts. At the core of the purpose of the Rule of Law sits the need to protect individual rights and liberties –salus populli suprema lex esto (the safety of the people should be the supreme law). This should pervade all the stages of interaction with the law –formulation, implementation and interpretation. What we have witnessed in this regard as a country is sabotage of the Rule of the Law that is flagrantly evident in both the Executive and Legislature and awfully latent in the Judiciary. We have lived short of the Delhi and Lagos Declarations by International Commission of Jurists that the functions of the government in a a free society should be so exercised as to create conditions in which the dignity of a man as an individual is upheld. The government must be wholesomely construed as opposed to H.E Uhuru’s misinformed and misleading signature statement -‘My Government’… What happened in the case of Miguna Miguna v Fred Okembo Matiangi’, Ministry of Interior and Coordination of National Government & 6 Others? While it is agreeable that the Court should apply the doctrine of proportionality in adjudicating over administrative actions, the decisions of the court should never be treated as merely of cosmetic values as averred by Dr Khaminwa. What will be the need for the Executive to litigate any disputes if it has a preconceived determination with which it can’t desist from even in blatant dereliction of its duty to promote the Rule of Law? But why does the Executive disregard court orders in strong belief that they are acting within the ambit of law? Lack of adequate laws for a valueless society?
However, the sabotage of the Rule of Law has not only been advanced by the three arms of the government. The general populace of Kenya is a big enemy of the Rule of Law. This is bred right from pre-school until our deathbeds. However, it has been more conspicuous in the Executive branch of the government as it is the one tasked with the duty to implement laws. As Martha Karua SC recounts, “ Executive is regarded to have most undermined the Rule of Law because it has the government machinery. However, the truth is that most Kenyans tend to avoid the law”. In conclusion, I want to submit that we still lack the adequate laws to support our valueless society to uphold the Rule of Law to the required standards. The Constitution of Kenya 2010 fails in providing adequate rules and processes while focusing more on conducts and styles. Yes, what we have is antithesis of the Rule of Law.

This article was written by Henry Okoth. He is a law student at the University of Nairobi who is very good at doing lawyerly things, including writing. Follow him on Twitter @HenryOkoth5

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