Father Gabriel Dolan wrote an article in the Standard in which he said of the invasion of the Kenyatta land last week: “By opening up a Pandora box they have set aside the rule of law – with obvious collaboration and connivance of the police – and set a dangerous precedent whereby political scores are settled on the land and property of your opponent.”
Another friend asked: “If the laws we have are wanting, then why should we be ruled by them, without question, indefinitely?” Basically, do we always have to observe the rule of law, even if the laws are not just?
It is a valid question. And it is one that is raised by the Constitution’s stress on the rule of law. The Preamble uses it: referring to “aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”
The rule of law appears as a national value in Article 10. Political parties are required to promote the rule of law, the President must ensure its protection; the Attorney General must “promote, protect and uphold” it; national security must be pursued in compliance with “the utmost respect for the rule of law”; and the Constitution must be interpreted in a way that “advances the rule of law”.
WHAT IS THE RULE OF LAW?
On the face of it, this seems a simple idea, which might be expanded by talking of the rule of law and not of men (or people we would prefer to say these days) – an expression we can trace back to Aristotle the Greek philosopher who lived over 2,000 years ago.
This does not mean that law is not made by people. What it does mean is that people’s behaviour should be regulated not by the whim of certain individuals (a monarch, a dictator, a party, or a clique). So the main obligation is upon those may have the power to do so not to try to compel people to behave in a certain way without having the backing of law. Sometimes this basic concept is described as “rule by law”.
A very old concept is that of “no crime [or no punishment] without law”. But it goes further than that. Exercising any power without the backing of law, even if no effort at holding someone liable for a crime is involved, is a violation of the rule of law.
This concept has been around for a very long time, and we can see it in, for example, Magna Carta, in 1215 when the barons of England extracted from King John (mostly for their own benefit not for that of humbler folk) various undertakings, including that “No freemen shall be taken or imprisoned or disseised [lose property] or exiled or in any way destroyed, … except by the lawful judgment of his peers or by the law of the land”.
A little thought will make it clear that, while it is definitely useful, this concept of the rule of law — often called a “thin” concept — is inadequate. Plenty of tyrannies have taken care to clothe their actions in legality. And even democratically made laws may be seriously defective from a justice point of view. There is such a thing as the “tyranny of the majority”.
A “thick” concept of the rule of law has, therefore, been developed. It means that it is not enough that a law has been passed by the correct procedure, but it must be also a fair law. As a famous Indian judge, Krishna Iyer said, “Procedure in Article 21 [of their Constitution saying that a person can lose life or liberty only by “procedure established by law”] means fair, not formal procedure. Law is reasonable law, not any enacted piece.”
So the Constitution of India sets up standards for law to satisfy the “rule of law”. And so does the Kenyan Constitution – even more clearly. Laws may be able to limit our rights and freedoms, but only if they are reasonable laws – and what this means is spelled out in our Article 24. And Kenyan courts have held that unclear law is not law at all so cannot limit our rights. We must be able to understand what we must or must not do to avoid getting into trouble with the law.
WHO MUST RESPECT THE RULE OF LAW?
Most obviously, the government must respect the rule of law. The government (meaning not just the President and the rest of the executive but Parliament and, at the county level, county assemblies and the Governors) make law.
I can imagine no reason that would justify the government knowingly disobeying the law. One fundamental aspect of the rule of law is that everyone is bound by the law – including the government. (Only the President has some protection from legal liability while he or she is President).
If it is ordinary law the government made, they can alter it, unless it is the Constitution, or the Constitution prevents them making the law they want. In that case, the law has been adopted by the people — a superior authority to the government. And even if the law the government doesn’t like was made by the judges, the decisions of the courts are binding. However, government can pass an Act of Parliament to change judge made law as long as this would not involve violating the Constitution.
Unfortunately, it is hard to enforce a court order against the government as such, as opposed to against an individual government officer. If government officials choose to disobey the law, they should bear the consequences. Unfortunately, too often, the consequences do not follow from their disobedience.
The frequency with which government institutions refuse to obey court orders is often commented on. And it is clear that government sometimes takes a chance and disobeys the law hoping no-one will challenge them in court.
How about the people? No society would survive if people were constantly breaking the law. And on what basis can people refuse to do so? Just because they think the law is bad – or because of divine guidance? Can we really operate on the basis that everyone makes their individual choice?
However, civil obedience has a long and respectable history. And sometimes there may even be a moral duty to disobey the law – think of those people who harboured runaway slaves in the US when it was a crime to do so. Disobedience to the law has sometimes been heroic.
In that situation, morality dictated breach of the law. In other circumstances maybe the primary focus of objectors should be to get the law changed. However, when the objection to law is that it breaches our rights the Constitution does give us a way to challenge the law without breaking it – by going to court (which we can do even if we are not personally affected). This (public interest litigation) is an important innovation in our Constitution, based on the South African Constitution and the Indian courts.
Some people, of course, think property is theft (though I think few in Kenya would take this view). Even without that, people might think our land laws — and even more the way they have been applied and abused in the past to enable some people to get huge wealth - is wrong.
Fr Dolan, of course, was not saying there is nothing wrong with the law – quite the contrary. He was saying that to instigate land invasions — especially for reasons not of desire to achieve justice but to victimise enemies — is to risk destructive consequences, without dealing fairly with the underlying issues. He would advocate steps that follow the rule of law.
It is a tragedy that, though the Constitution mandated the National Land Commission to deal with historic land injustices, the response in ordinary law has been either incompetent — or maybe deliberate sabotage of the whole idea. This is a violation of the rule of law.