Various recent events have brought home how far we fall short of achieving the rule of law –or even understanding what it is.
Its basic tenet is that everyone — not just wananchi, for example — is bound to follow the law. It is the rule of law, not of the whim of rulers.
Last week, the Star reported a remarkable – indeed preposterous – statement by Health Cabinet Secretary Mutahi Kagwe that President Uhuru Kenyatta “can always, at his pleasure, make changes in any institution" in the country.
But Uhuru as President, is the creature of the Constitution. He (or she when we eventually have one) can do only what the Constitution – or other law that is not inconsistent with the Constitution – allows.
KAGWE’S DUTY
An interesting point: CS Kagwe was speaking in the context of the President’s dismissal of the board of Kenya Medical Supplies Authority. But Kemsa’s Act of Parliament says the board chair is appointed by the President, but other, non-ex officio, members are appointed by the CS. And all non-ex officio members (including the chair) may be removed only by the CS and only for specific reasons, including missing meetings, being convicted of a serious offence, being ill for a long time and violating Chapter Six of the Constitution on integrity.
Even then, the CS acts on the recommendation of the board. This means the Act does not envisage wholesale removal of the Board – not even by the President.
If an Act of Parliament says that if a CS is responsible for something, it does not mean the President is. You might think – the President can sack a CS, so of course he or she will do what the President says. But a court would take the view that people who are given a solemn responsibility in law must exercise it and a decision taken by someone else, or taken on the direction of someone else is not a valid decision.
There is, of course, another tricky issue here — how to deal with a situation when the whole board should be sacked – but none of them would say any other of them should be sacked!
TAKE THE LAW SERIOUSLY
There are arguments in academic, and indeed judicial, circles about exactly what the rule of law means. Many would say that it does not mean just any law – but law that is fair and just, and human rights compliant. It is different from the rule by law – which means just applying the letter of the law. But in Kenya, it seems hard to get even rule by law taken seriously. The fact is that government — and some in the media — do not take the law seriously enough.
How else do we explain the constant disregard of court decisions: the President over the 41 judges recommended by the JSC that he won't appoint, and the government over LAPSSET, or the SGR through the Nairobi National Park, or the Nairobi Expressway – on all of which work has continued despite court orders?
And courts have numerous times held that it is unconstitutional for hospitals (and other institutions including hotels) to prevent people leaving because they have not paid their bill. Yet it goes on happening – again and again. The hospitals must know that what they are doing is wrong.
We need to devise some method of ensuring what courts decide is actually respected and applied. Admittedly there is a problem of people who get admission to hospitals and then are unable – or unwilling – to pay. But the solution is not to turn hospitals into debtors’ prisons – reminiscent of Charles Dickens in the mid-19th century.
And it is disappointing, the Senate having gone to court in 2013 and achieved a court order - from the Supreme Court no less - that passing the Division of Revenue Bill each year should involve the Senate as well as the National Assembly, that six years later the National Assembly should still be resisting involving the Senate.
CHIEF JUSTICE AND PRESIDENT
Another columnist suggested that the Chief Justice erred when he “advised” the president to dissolve Parliament because it had not passed the necessary law to ensure not more than two-thirds of either gender in each house of Parliament. It was, he suggested, unnecessarily provocative.
It is not that the judges never have a choice. And it may indeed be true that sometimes judges might consider the impact on government and on judiciary/government relations when making a choice – but only if they actually have a choice.
And judges have to be particularly careful not to bow to the whims of government – or to look as though they are. The main purpose of stressing the rule of law in the Constitution is precisely that government and the otherwise powerful should recognise that the law applies to them. It is a major reason for protecting independence of the Judiciary.
The Chief Justice should not have had a choice on this occasion. In fact he seems to have delayed a bit over the whole issue, perhaps not wanting to make relations with the president any worse.
The Constitution is perfectly clear. If there is a court order to implement a law required by the Constitution, and Parliament does not enact that law by the deadline specified, the Chief Justice “shall” issue an advisory to the President and the President “shall” dissolve Parliament. The “shalls” in this context are directives. Neither had a choice.
The columnist’s point was again a failure to appreciate the force of the rule of law. Some actions are a matter of choice, some are a matter of compulsion. While dissident citizens may sometimes practice civil disobedience, judges should not do so. If they don’t obey one law that compels them to do something – why should we expect them to obey any law? And what happens to law if people – especially judges - choose not to obey it?
In fact constitution makers may sometimes deliberately limit choices — if an official has no choice then his or her actions should not create animosity.
But that is Kenyans’ dilemma – too many public servants, right up to the President, seem to think it is all right just not to obey the law. So where is the law?
SYSTEM OF GOVERNMENT
Maybe the very existence of the Office of executive President – and a whole history attached to it –is partly responsible for the acquiescence in the notion that the rule of law does not matter.
Lawyer Kamotho Waiganjo can ask us, “Is there any Kenyan out there who really believes that a President, in an infant democracy like ours, would appoint a candidate they have problems with just because the candidate has been approved by the JSC?”
In other words, does any sensible person believe that the Constitution is really being applied?
Maybe he is right. Yet the Constitution says that the President has no choice on this matter. The only choice is that of Parliament – who will almost certainly do the President’s bidding.
Even though Kenyans did not want this to continue, they still seem to believe less in the rule of law and more in the President’s word being law. And the first president’s son no doubt imbibed with his mother’s milk the idea that the President is somehow endowed with qualities a bit like a king or even a god.
Maybe if we had adopted a parliamentary system – as all but the final constitution drafts favoured – things would have been different. But the committee that shifted the system back to a presidential one scuppered any hope of this change.
However much the Constitution may insist on the rule of law, on the equality of everyone before the law, it seems impossible to shake off, even from the minds of some sophisticated individuals, the idea that the President is somehow special, and can do basically what he wants. And the whole governmental structure is far too inclined to believe that it too does not really have to accept the constraints of the law.
