GHAI: Fifteen years on: understanding the constitution better

A protester with a copy of the constitution in Nairobi /FILE

We have just marked—indeed, celebrated—the promulgation of the constitution on August 27, 2010.

However, it seems that some things about the constitution are not well understood. I am not here focusing on politicians who deliberately ignore the constitution.

Dissolving Parliament

Dissolving Parliament is not, of course, a matter of putting it in a bath of acid. Parliament dissolves when the current set of MPs and senators cease to hold their seats in anticipation of an imminent election. Under the old constitution, Parliament would be dissolved automatically on the fifth anniversary of its first sitting following the previous general election.

In fact, that never happened because the President could dissolve it at any time—and would do so to set off the process for a general election. The last dissolution of that sort was by President Kibaki in 2007. It was not necessary to do the same in 2012/13 because by then the constitution was in force that said Parliament would be dissolved at the end of its term.

The President cannot, under the constitution now, call an election by dissolving Parliament. The constitution does not even use the expression “dissolve” about the end of a Parliament’s life. It simply says its term “expires” on the date of the next election.

People—including columnists—should stop saying “The President should dissolve” – he cannot do it. He can do so only if the Chief Justice has advised him (which really means told him) to do so because Parliament has not passed the law required by the Fifth Schedule of the constitution (Article 261(7)). In fact, President Uhuru was told to do so by Chief Justice Maraga in 2020 – on the gender issue—and simply did not.

Can President arrest people?

The idea is ridiculous, of course. But one or two people have said things like “If you're the President and you know those who are stealing, why don't you arrest them?” Even the President said, “We are going to arrest them”. 

“We” does not include the President – unless he envisages a citizen’s arrest. Section 34 of the Criminal Procedure Code says “A private person [which means not police] may arrest any person … whom he reasonably suspects of having committed a felony.” Is bribery a felony? I would argue not: “felony” is used in the Penal Code and defined there (as an offence with a possible penalty of three years or more imprisonment). But bribery is an offence not under that code but under the Anti-Bribery Act.  It is time we did away with these words “felony” and “misdemeanour”, which are not used consistently.

Neither the President nor anyone else in government can tell the police whom to arrest. “No person may give a direction to the Inspector-General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons.”

The President should inform the Ethics and Anti-Corruption Commission or the police if there is credible evidence against anyone of bribery.

Limiting human rights

People may be aware of and enthusiastic about rights such as freedom of expression, demonstration, to water and health, to dignity and equality. On the other hand, courts sometimes say “rights are not absolute” - which is true (with a few exceptions including fair trial). But neither side may get to grips with when and why those rights may be restricted by law. The constitution when older lawyers and most judges studied approached this question very differently.

Some courts have done a very good job of analysing the case before them using Article 24. They have to look for a good balance between the right protected and the purpose to be achieved by law that limits it. Particularly they must ask: could the purpose of the law have been achieved while limiting rights less?  Carefully thought through and argued, this approach should not involve just confrontation but rational decision making.

Date of next election

Occasionally, someone argues that the election date is wrong under the constitution. There is not really an issue and it does not need a court to decide. Common sense suggests that the drafters of the constitution did not intend that the gap between general elections should sometimes be about five years and sometimes four.

The constitution says that, “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year” (Art. 101(1)). The common sense meaning of “in every fifth year” is in every fifth calendar year. We are now in the calendar year 2025.

The days of each date are not the same in succeeding years. The second Tuesday in August 2022 was 9, this year August 12, and in 2027 will be August 10.

In other words, the 2027 election will be held five years and a day after the 2022 one. The 2022 elections were held five years less one day after the 2017 one. Some people have argued that if held on August 10 the election will be in the wrong year. How?

“Year” can mean either a calendar year or a period of 365 days (366 if a February 29 is involved). Article 29 says that if a period of time is “expressed as years” that period ends at the beginning of the date of “the relevant year” that corresponds to the date on which the period began. So five years from August 9, 2022 is August 9, 2027. August 10 will be the beginning of the sixth year.

The problem is that the election date is not expressed as years. It is expressed as a day in a month in a year. The misunderstanding is compounded because the 2017 election was held in the wrong year. I was surprised that MPs did not sue to say they should have stayed on till 2018.

Devolution

Devolution has caused many problems of understanding, not just to citizens generally but to lawyers and judges, too. The idea that one level of government can do things but the other cannot (especially if it means the national government lacks powers) is hard to understand. I believe it is right that counties do not have power to give bursaries for levels of education they have no power to be involved in.

Counties have limited power to tax, but many still raise “cess”. It’s a tax – it is not in return for any goods or services. Courts have not yet clearly held this.

I believe Raila Odinga has a misunderstanding when he says CDF money should be given to counties. The first decision in the annual allocation of revenue is to divide the “revenue raised nationally” between the national government and the counties as a whole. At least 15 per cent must go to the counties. The CDF comes from the national government share. Originally the courts held it was unconstitutional because MPs and their committees could spend it on things that were county responsibilities – like local clinics and cattle dips. So, Parliament changed the law to say it must be used only for national responsibilities.

The line is not always easy to draw – which is one reason why the Supreme Court said the CDF was unconstitutional. Yes, I believe it should be abolished. But I am not convinced that counties should then be given 2.5 per cent more of the national revenue. The CDF is allocated to the national government for national government tasks - which counties cannot perform.

Everyone must respect, and if necessary, defend the constitution. They should also be prepared to use the constitution – it is their tool to protect themselves and achieve accountability of government.

This requires careful reading—realizing that often one article cannot be fully understood by itself. And common sense.