GUARDIANS OF CONSTITUTIONALISM PART III:
External institutions to safeguard and encourage faithful implementation of the Constitution
- Establishment of Law Reform Commissions:
The traditional mandate of the Kenya Law Reform Commission is “keeping all Kenyan laws under review to ensure their systematic development and reform, including, in particular their integration, unification and codification”. The reform involves the elimination of anomalies, the repeal of obsolete and unnecessary enactments and general simplification and modernization of the laws. The KLRC is therefore the primary law reform agency in Kenya and part of its mandate is to offer technical legal advice to government agencies on the review of laws for which they take responsibility. By executing these functions, KLRC guarantees that constitutionalism is upheld.
The Constitution of Kenya serves as the “facilitator, enabler and defender of gains made across regimes intentions of which are to be mainstreamed into the various proposed legislation in its implementation”. In this respect KLRC has a direct responsibility in coordinating with the CIC and the AG in the preparation and tabling in Parliament legislation required to implement the Constitution (Article 262(6)(b). This puts into context KLRC’s constitutional mandate.[i] These functions thus place it at the forefront as watchdog of constitutional implementation and as the logical successor to the Commission for the Implementation of the Constitution of Kenya.
* Country Comparison: Canada
The Law Reform Commission of Canada (1971–1993, 1997–2006) is a “permanent independent body to study and undertake a systematic review of Canadian law.” The LRCC performs functions such as making recommendations for the modernization, improvement, and overall reform of certain federal laws and deletion of others, as well as providing a basis for philosophical inquiry into legal issues. The LRCC was intended to act as a stable body that would keep federal laws up to date and analyze key public policy issues. The commission established links with government ministries, the judiciary, the legislative assembly, legal academics and others in order to create the knowledge necessary to develop fully considered recommendations for law reform. The benefits of such a commission include independence from government bureaucracy and influence, with access to groups of people who are experts in their areas of interest and focused on the Commissions’ issues[ii].
- The Role of Civil Society as ‘the Third Sector’
Any discourse around civil society and constitutionalism undoubtedly brings to mind ‘familiar quotations from De la Democratie en Amerique that one hears incessantly in discussions of the remarkable history of voluntary associations in the United States. Tocqueville believed that: “voluntary associations fuse personal interest and the common good” and he “hoped that civil society would serve liberty by diluting the influence of any single interest, weakening the majority, and guarding against the excesses of the very democracy that stimulated their appearance.” (p.164). It was thus the ‘associationalism’ of civil society that counteracted the tendency of egalitarianism to produce a society of strangers: “This made it all the more important for civil society to provide the principles of association that are not spontaneously generated by politics or commerce.” (p.165) “Tocqueville hoped that the Americans could show Europe how to limit the egalitarian and universal democratic state by reserving considerable power to a civil society that could mediate between the isolated individuals of a commercial society and an increasingly centralized and intrusive governmental apparatus.” (p.169)[iii]
Indeed, in Kenya, the role of the civil society and opinion leaders is to mobilize the communities, provide civic education and advocacy to ensure that the issues relevant to all citizens are taken care of in the implementation process and also that the leadership at both county and national levels are responsive to the people and the provisions of the constitution[iv].
For example, civil society (representatives) filed a petition in the Supreme Court regarding the March 4th 2013 general elections, seeking “to demonstrate that constitutional and legal safeguards on the election process were so breached that the accuracy and legitimacy of the electoral outcomes have been laid open to question.” The petitioners sought to “demonstrate that the electoral process was neither accountable nor transparent and its results are, therefore, non-verifiable and sought declarations and orders to rectify all such breaches[v].
- The Role of Lawyers and Professional Bar Associations:
The Law Society of Kenya (LSK) is Kenya’s bar association, possessing the mandate to advise and assist members of the legal profession, the government and the larger public in all matters relating to the administration of justice; and is charged with the responsibility of overseeing the practice of law in Kenya. The Law Society of Kenya (LSK) has formed a Committee on Protection and Ideal Implementation of the Constitution[vii].
The Council of LSK formed the Committee over increasing concerns on the state of the Rule of Law sound implementation of the Constitution which will operate to “promote constitutionalism and pursue a momentous implementation of the constitution.” This is occasioned by the observation that “the Executive arm of Government has demonstrated uncontrolled appetite towards violation of the Constitution and disregard to judicial pronouncements,” as well as the fact that “Members of Parliament have at times passed or attempted to pass legislation that is glaringly unconstitutional and have pursued their oversight role with mala fide.[viii]”
The LSK has been party to critical constitutional litigation such as that challenging the constitutionality of the decision of the National Assembly to nullify certain Gazette Notices issued by the Salaries and Remuneration Commission (SRC) in respect of salaries for state officers. The petitioners also question the constitutionality of several Acts of Parliament relating to the terms of service of Members of the National Assembly[ix].
* Country Comparison: Pakistan
A broad coalition of lawyers and other groups responded to executive overreaching through large scale nationwide protests, and spurred changes in the Pakistani political system writ large[x]. By the summer of 2008, Pakistani lawyers had been leading protests for several months seeking the restoration to office of over sixty superior court judges (including the Chief Justice). After a grueling and tireless two year struggle the lawyers’ movement succeeded[xi] in refuting extraconstitutional executive acts, secured the independence of the Judiciary against “the dictator”.
Conclusion:
In this piece, I have attempted to list[xii] the devices and bodies within and without the Kenyan constitution which, when working together, form a legal, political, social and normative framework committed to safeguard and facilitate fidelity to the letter and spirit of the Constitution. I have also compared similar apparatus utilized in other jurisdictions. They operate according to the national values and principles of governance enumerated in Article 10 which include national unity, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, and non-discrimination; good governance, integrity, transparency and accountability.
In sum, the above mechanisms and institutions subscribe to the ideal of constitutionalism as a normative theory comprising a set of processes and rules that allocate discipline, govern power and maximize the ideals of freedom, full participation and representation[xiii] and make it a reality.
[i] http://www.klrc.go.ke/index.php/about-klrc/history-and-background
[ii] http://www.thecanadianencyclopedia.ca/en/article/law-reform-commission-of-canada/
[iii] CONSTITUTIONALISM AND CIVIL SOCIETY The Jefferson Lecture University of California at Berkeley 25 April 2000 Stanley N. Katz Woodrow Wilson School Princeton University
[iv] Wanjiku’s Power P. VII in a version edited by the author and available on request
[v] http://www.kenya-today.com/facing-justice/civil-society-election-petition
[vi] http://www.dw.com/en/case-against-kenyan-presidential-candidates-dropped/a-16417010
[vii] http://www.lsk.or.ke/index.php/about-lsk/76
[viii] http://www.lsk.or.ke/index.php/component/content/article/1-latest-news/548-lsk-forms-constitution-committee
[ix] Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR (can be accessed at http://kenyalaw.org/caselaw/cases/view/94151/)
[x] Comparative Constitutional Law, 3rd Ed. Jackson & Tushnet, P.807
[xi] Ibid P. 806–7
[xii] This is by no means an exhaustive list of ways to secure and promote constitutionalism
[xiii] The Constitution of Kenya: Contemporary Readings, M.K. Mbondenyi, P.L.O. Lumumba, Steve O. Odera, P. 48
