Last week I commented that Prof Upendra Baxi wrote about an unwritten constitution of India. Readers might have viewed this as a piece of gratuitous exhibitionism (in other words showing off) on my part – in the way that it is almost required of columnists to have some learned reference or quotation early in their piece to demonstrate their credentials.
But this notion did give me a perspective on the Kenyan Constitution.
I can best explain Baxi by another quotation – from Dr Linda Musumba who wrote in The Standard in 2009 that Baxi, "argues that in every state there are underlying dynamics emanating from customs, norms and other pertinent historical socio-political factors, which even though not codified expressly in the written word of the constitution, are nevertheless very influential and abiding.
Their influence has been found to be so strong as to cause alterations, even major ones, to the ordinary meaning of the text in the written constitution and the implementation thereof. Baxi further states the unwritten constitution continually hovers over the written constitution threatening in some cases to supplant and even replace it.”
I can clearly see at least three elements of our unwritten constitution.
THE PRESIDENT’S POWERS
These conceptions are not limited to the powerful in society. Apparently ordinary Kenyans embrace them. One might mention someone who wrote a column a few days ago arguing that – because we have a “presidential system” – the President can do anything he wants.
Apparently some ordinary Kenyans (those in whom sovereignty rests) are convinced that they have given away their sovereignty to the President. Is this because this is the message that so insistently comes from the ruling class? Or it is because of a nostalgia for the days when you didn’t have to think too much about government and what your role and responsibilities were because there was the President (the Big Daddy) to do it all for you?
I am happy to go with the expression “presidential system”. It is used to distinguish a system in which the President, who is head of government, does not owe his or her position to selection by Parliament, and is not a member of Parliament. It is radically different from a parliamentary system in which who is head of government is decided on the basis of balance of party power in Parliament.
"That person, known as Prime Minister in most systems, may head the biggest party. He or she may emerge from a process of bargaining between parties when none has a clear majority (we have just seen this working out in Israel).
There is no such thing as the presidential system or even the parliamentary system. Each presidential system or parliamentary system is a bit different.
But you would be hard pressed to find a decent functioning presidential system in which the constitution allows the President to do anything he or she chooses. In fact it is an important function of constitutions to limit powers, or rather to give only limited powers.
Mediaeval European Kings (and the rare Queen) could perhaps do anything – legally speaking. As a result of the almost irresistible temptation to abuse such powers (for “absolute power corrupts absolutely”), European history is full of civil wars, rebellions and assassinations. And politics was mainly a process of the elite trying to wrest much of the power from the monarch, and later the people trying to reclaim that power for themselves – at least through democratically elected representatives.
It is hundreds of years since English Kings were able to do just as they pleased. And as I said last week, “Kenya is not a monarchy.” Limiting powers (like limiting duration of office) is an important factor in achieving stability and preventing political violence.
The Constitution of Kenya Review Commission (2002) and the Bomas Constitutional Conference (2004) recommended a parliamentary system with a President elected by the people (on the model in Ireland) but with very few powers. Ever since the first constitution draft, people have been saying things like, “You can’t have the people elect a President and then take away his powers."
That statement reveals the same attitude – shaped by two dictatorial Presidents – that somehow a person called 'President' has a right to certain, and extensive, powers. People must get their heads round the reality: the President of Kenya has only the powers specified by the Constitution, nothing more, unless the Constitution itself allows Parliament to give him/her more.
Notably the Constitution allows national legislation (an Act of Parliament or regulations) to give the President executive powers. This means no powers to make law or make a judgment like a judge. And a law giving presidential powers could not contradict the Constitution.
The President has no 'inherent'” powers. He/she is entirely a creature of the Constitution. And when he objects that he cannot have a purely formal role, he is wrong – as the courts have said – if that is all the Constitution gives him.
'NATIONAL INTEREST'
The 'national interest' has a powerful hold over the ruling elite. Government tends to think that they are the best judges of this. You may remember how in 2010 someone managed to get printed a number of copies of the Draft Constitution– the draft that was going to the referendum of August that year – that contained that phrase (or the “public interest” - I cannot recall which) inserted into Chapter Four (Bill of Rights).
It appeared, in those rogue copies, to allow rights to be overridden in the national interest. It was spotted and most people got the correct copy.
Underlying this manoeuvre there was presumably a belief that – if rights could be limited in the public interest – it would be the government that decided what that interest was. Now the Constitution uses 'national interest' only once – in connection with how revenue raised nationally is divided between the national and county governments.
Again government has been treating this as something they are the judges of. And a court had to tell it that the 'national interest' is just one of the factors to be taken into account in dividing the money, not a thing for which sums must be allocated to the national government. It cannot be used to take away a big slice before even beginning to make the division.
The judges are the current target of complaints that they don’t pay sufficient regard to the national or public interest. Somehow they are supposed to disregard the law and think of the wider national interest. Last year the President said that no interest is above the public interest. But this is not true. During the current pandemic we have seen how the supposed public interest can be used to ride roughshod over the rights of individuals.
It is in the public interest that the law be applied – though there is often room for mercy and flexibility – and that rights be respected.
DEVOLUTION
Parliament particularly has not understood that in the written Constitution we do not have the old local government system. We have 47 second level governments with powers to make law, raise some taxes and develop their counties, with their own system of accountability.
The written Constitution says they are “distinct”. The unwritten Constitution focuses on “inter-dependent”, really meaning “dependent on us”. The Senate especially longs to supervise counties and to tell them how to exercise their powers.
Parliamentarians also had their own reading of the Constitution when they said Parliament could not be a flower girl in the passing of the BBI. Again they read what they wanted it to say. So did the National Assembly over involving the Senate in making laws affecting counties.
THE OLD CONSTITUTION
It’s as though politicians read the written Constitution (or maybe don’t read it) with an overlay of the old Constitution, and of wishful thinking. But the old Constitution is what we wanted to move away from.
Citizens at least should be reading the written Constitution.
The author is a member of the Board of Katiba Institute but writes in her personal capacity
(Edited by V. Graham)
