GUARDIANS OF CONSTITUTIONALISM: MECHANISMS AND INSTITUTIONS
A. Background — The Kenyan Context:
1963–2010
Since independence, and in the words of the late Prof. Okoth-Ogendo, Kenya endured under a constitution without constitutionalism. Prior to August 27th 2010, the situation in Kenya was described as appalling and untenable, characterized by graft and grand corruption, and state sanctioned (and at times state perpetuated) human rights violations.
“The legacy Kenya inherited from years of colonial rule and one party ‘constitutionalism’ failed to create separation of powers or semblance of a system of checks and balances. Kenyans saw the law as their natural enemy, and the law enforcer as untrustworthy. This situation developed into normalized behavior.
It developed into unwritten rules both the ruling elite and the ordinary citizens accepted as a normal evil. This colonial and one party ‘real’ constitution cohabited with a formal constitution that claimed to guarantee freedom and democratic principles. From this situation, Kenyan constitutionalism became a combination of a formal constitution that guaranteed rights, and a ‘real’ constitution that showed no regard for the content of the formal document, while still dominating the political life of the nation.
In more concrete terms, and according to Prof. J. M. Kamatali, though the ‘role-occupants’, the ‘law-appliers’ and the ‘law-enforcers’ of the Kenyan constitution were supposed to be guided by the obligations imposed by the normative framework of the independence constitution; their practice remained driven by normalized behaviour foisted on the people by the political, economic, social, psychological and ethnical matrix in which they operated.
The 2007/8 violence and the impunity that followed it starkly illustrates the very extent to which the ‘real’ constitution in Kenya had rendered insignificant the ‘formal’ constitution. Prof. Kamatali further argues that though the most visible expression of the Kenyan crisis was an episode of electoral theft and fraud; underneath it laid an epicentre of failed institutions and leadership. This epicenter was in turn rooted on a platform of a spectacular failure of constitutionalism.[i] The 2007/8 crisis was, however, more than merely about elections. The root cause was the failure of the ‘formal’ constitution to transform the ‘real’ constitution.[ii]”
2010 –
The current Constitution was promulgated in 2010, and is a highly significant milestone in Kenya’s history; a second liberation of sorts. It recognizes the sovereignty of the people and the Supremacy of the Constitution, unlike before when the order of the day was the sovereignty of the state and the supremacy of Parliament. The new Supreme Law of Kenya was necessitated by the need to break free from decades of dictatorship under the hands of the country’s first two presidents, and gross human rights violations. The Constitution has ushered in a new legal order and enshrined constitutionalism, democratic governance and protection, promotion and respect for human rights. It has also introduced the advent of devolution, the purpose of which inter alia is to promote democratic and accountable use of power, as well as give powers of self-governance to the people and enhance people’s participation.
The Constitution of Kenya 2010 sought to remedy the ills described above, by introducing a culture of respect for the Rule of Law and human rights, and democratic governance.[iii].
B. Introduction — A working Definition of Constitutionalism
When speaking of constitutionalism, we acknowledge that its origins derive from the term constitution, whose very existence and purpose stems from the ‘inevitable need to limit governments [iv]’. De Smith more comprehensively describes it as follows:
The idea of constitutionalism involves the proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content. The rules may be, at one extreme (as in the United Kingdom) mere conventional norms, and at the other directions, prohibitions set down in a basic constitutional instrument, disregard of which may be pronounced ineffectual by a court of law”.[v]
More succinctly, it is that political process, with or without a written constitution, which is more or less oriented to public rules and institutions intended to define and contain the exercise of political process[vi].
Constitutionalism can be said to be of a higher abstraction[vii] than Dicey’s Rule of Law, the German rechtsstaat, or even the French État de droit. Its exposition is an evaluation of the extent to which the form, substance and legitimacy of constitutional principles as embodied in the constitution are practiced. Constitutionalism elevates the concept of the Rule of Law, is rooted in and routed through the delineation the governance structures while subjecting them to various checks and balances in order to ensure citizens’ fundamental freedoms and rights are safeguarded; the execution of which must be procedurally and substantively sound[viii].
The concept of constitutionalism should be viewed as bi-directional. It is both a ‘backward-looking historical fact of the founding act [and the] normative task of continuing interpretation. As much as the concept has a grand historical legacy, it is often a mundane day-to-day activity …. an intricate web of lived experiences and human interactions.[ix]’ I will make use of this holistic definition as I explore the various processes and institutions which ensure that organs of state maintain fidelity to the constitution- its ideals and text. I will interrogate how the Constitution of Kenya is safeguarded and implemented by internal devices as well as external institutions, and conduct a comparative analysis with similar mechanisms in other jurisdictions.
[i] For detailed discussions on how ‘episodes’. ‘epicentres’ and ‘platforms’ are connected with conflict transformation, see John Paul Lederach, The Little Book of Conflict Transformation, PA, PA 2003, Pp. 40–47
[ii] Jean-Marie Kamatali, Transitional Issues in the Kenyan Constitution (International Commission of Jurists Report, 2009–2010)
[iii] This section is an excerpt from a document prepared by the author, and is available on request
[iv] Bradley, A. and Ewing, K. 2011 (Constitutional and Administrative Law)
[v] De Smith S A The New Commonwealth and Its Constitutions (London, 1964)
[vi] Comparative Constitutionalism, Cases and Materials, 2nd Ed, Dorsen, Rosenfeld, Sajo, and Baer, P. 38
[vii] Ibid
[viii] The Constitution of Kenya: Contemporary Readings, M.K. Mbondenyi, P.L.O. Lumumba, Steve O. Odera, Pp.15–16
[ix] Ibid, P. 47
