End of Moi era revamped justice but slip back to dark days looms
- Roadside hiring and firing of state, judicial and other public officials led to an erosion of standards and encouraged a self-destructing patronage culture.
- Constitutionalism is not about who has which power but how that power is exercised within the law for the interest of the citizens.
I had a heated argument with a group of young Kenyan undergraduate law students in their final year on whether international law is superior to the Constitution of Kenya.
They were of the view that Kenyan law is Supreme and its decision final.
My opinion was — and still is — that international law can override a country’s decision if it is felt non-derogable international norms were being breached and the rights of the citizens impinged upon.
It is easy to mistake the ‘supremacy’ of the law for the sovereignty of a country. Supremacy is a consensus on how and when and which laws a society prescribes as supreme.
But that does not mean supremacy of the law cannot be challenged if it interferes with individual rights under international law.
Sovereignty is the power given to an independent state to govern itself.
The current Constitution, when it was promulgated in 2010, came on the back of a lawless period in Kenya — from independence in 1963 up to the end of the one-party rule in 2002.
Then, the Constitution was a rehash of the colonial laws — an emergency law used by white settlers to brutally subjugate Africans in Kenya.
It was indigenised after independence but most of its unsavoury aspects were preserved for use by the African-led government on its own people.
Its impact was evident in the way the local provincial administration and security agencies operated. So much power was concentrated in their hands that, unsurprisingly, Kenya was regarded as a police state.
Presidential power had a top-down approach. The office holder wielded immense and absolute power and what he said went.
One could not tell where executive powers began and the Judiciary’s ended.
The blurred lines between the Executive, Judiciary and Legislature led to untold suffering and an immeasurable sense of miscarriage of justice, as the decision in the three arms of government were rarely taken independently but dependent upon presidential decree, even if it led to human rights violations.
An all-powerful president meant judges and magistrates were never far from giving biased judgments since a dissenting judicial view meant an on-the-spot sacking with no recourse.
Roadside hiring and firing of state, judicial and other public officials, who failed to toe the line, led to an erosion of standards and encouraged a self-destructing patronage culture.
Impunity, which was the hallmark of the pre-2010 governments, showed how and what can happen without constitutionalism.
The Constitution then was only worth the paper it was written on. It could not be interrogated or challenged as there were limited ways of doing so.
Hence a president, with the Legislature under his thumb, could enact laws overnight and get the Judiciary to enforce them whether they were in acquiescence or not.
Kenya has come away from those dark days. The current Constitution is gradually entrenching constitutionalism.
An ordinary person has the confidence to demand their constitutional rights in court.
The Constitution has been instrumental in restructuring our court system in a way that offers solid rungs within the justice system, where the Constitution can be interrogated step by step in the public interest.
The establishment of the Supreme Court was one such positive move. It has not been free of criticism; nonetheless, its crucial role in being the last arbiter and defender of the Constitution and constitutionalism cannot be overemphasised.
The historic nullification of the 2017 presidential election results is a key success for the Supreme Court and has become a positive example across Africa and the world.
RULE OF LAW
The distinct powers of the three arms of government — Executive, Legislature and Judiciary — are very important in establishing the independence of every one of them.
They may all play crucial roles in advancing democracy, but the Judiciary has an even more important role — that of making sure that no individual or government authority acts outside the remit of the law.
Constitutionalism is not about who has which power but how that power is exercised within the law for the interest of the citizens.
It is by respecting court rulings determined within the law that constitutionalism can thrive.
The rule of law is the heartbeat of constitutionalism: no government authority should operate outside the law and to do so is tantamount to impunity.
Value- and rights-based constitutionalism is the foundation of any law-abiding and prosperous state.
However, there is a threat to constitutionalism, which is coming through in how the Executive is showing disregard for court orders.
Kenya can only wean itself of impunity by respecting the rule of law, immersing itself in constitutionalism and respecting court decisions.
Ms Guyo is a legal researcher. ; @kdiguyo