BRUNO OTIATO: Lawyers, judges should not usurp people’s power

Herman Manyora, a linguist and political commentator, last year said the law is just common sense and English. Law Society of Kenya president Nelson Havi agreed with him. The two were on Jeff Koinange Live sometime in June.

I dare add that the law is not just a preserve of lawyers as they would have us believe. For this reason constitutions are written simply so that anyone with a basic knowledge of the English language can read and understand.

Interestingly, political scientists hold the view that constitutions are political documents. This is, indeed, what Prof Peter Wanyande, commissioner of the Constitution and Implementation Commission, now defunct, taught us in basic concepts of political science at the University of Nairobi. He argued that the constitution is a political document and there is nothing legal in it but it is binding.

The hard truth is that the first and the most important element of any constitution is the management and distribution of power. And who understands power more than a political scientist?

But this is not to say lawyers are not important. Let me explain how lawyers are important in the making of laws and why they get it so wrong; more than the people of Kansas.

Constitutions are, basically, stories of how societies/organisations ought to be managed. These stories, however, are not narrated by lawyers but by different actors in society.

For instance, in the case of our constitution, economists gave a story on how public finance should be managed; human rights activists gave a story on the fundamental freedom and rights that Kenyans should enjoy; land and environment experts gave a story on the management of land and natural resources; governance experts gave a story on leadership and integrity and political scientists and a pocket of lawyers gave a story on how Kenyans might want their government structured, power and functions distributed and elections held.

It’s at this point that lawyers become useful. Lawyers make laws out of all these stories. They read submissions made on specific issues and craft laws that attempt to work in tandem with other existing laws and with little lacunae.

Sadly, after making laws out of the stories, lawyers start speaking, acting and behaving as though the laws they crafted originated from them. For this reason, they get simple things — written in simple English and easily understood by the application of common sense — deadly wrong.

Now, a reading of the judgment by the High Court of Kenya on the BBI constitutional amendment process looked at in tandem with comments, opinions and the submissions made by lawyers at the Court of Appeal, all point to one thing: Lawyers, and indeed judges, have a limited understanding of politics yet the law is at the service of politics.

This is important because that’s the beginning of all constitutions. Politics. Thus the claim that the constitution is a political document and not a legal document. It is written for political purposes and objectives. But based on the culture of the political class, constitutions are either made rigid or flexible. Our constitution is a mix of both.

Therefore, the whole discussion about basic structure, eternity clauses, unamendable clauses and unconstitutional amendments is a good discourse for purposes of academic discussions. This is banter for lawyers and judges and not Wanjiku.

In fact, it’s my firm belief that the High Court judgment on BBI would have gotten a lot of acclamation locally and internationally if the judges, instead of giving the declarations, ended the judgment by stating that it was just but an academic exercise to inform future discussions on constitution making and constitution amendment.

Speaking as “Wanjiku”, let me end by saying, lawyers and judges should save us the trouble of trying so hard to convince us that, by and large, the academic discussions that took place at the Court of Appeal are ‘promoted’ or ‘initiated’ by us. A majority of the submissions made at the Court of Appeal were simply and squarely legal braggadocio and nothing to do with what the constitution provides for its amendment.

Political Scientist. [email protected]