Kenya's Executive and Legislature are guilty of a major dereliction of duty that has caused the judiciary to be turned into the primary arena of political contest in the country. This condition will only worsen as political realignments intensify in the run-up to 2022 and the elite works to perpetuate itself essentially in opposition to the constitution.
Proponents of the Building Bridges Initiative say that it will bring about equity and national unity. This might all be well and true. But it is what they are not saying that is most worrying.
With the country in the grip of a global pandemic and grappling with an ailing economy, is constitutional reform a priority when it’s not clear that the country is facing a constitutional moment?
The Supreme Court's edict to President Kenyatta on the 2/3rds gender rule was the only legal way to go argues Prof. Makau Mutua. However, while the President of the Supreme Court is a jurist, he argues, the Chief Justice is a quasi-politician advancing the spirit of the constitution in a fluid political context. The judiciary isn't equipped to resolve Kenya's political problems.
The Supreme Court’s ‘advisory’ to President Kenyatta emerged out of a constitution that anticipates the President’s recalcitrance with regards to issues such as the 2/3rds gender rule. As a result, as things stand today Kenya’s parliament doesn’t have the constitutional authority to amend the constitution. That said, the real crisis is that important leaders apparently believe patriarchy is above the law in Kenya. The Elephant in conversation with Waikwa, an advocate of the High Court of Kenya and a Barrister and Solicitor with the Law Society of Canada.
The Chief Justice's advisory on the two-thirds gender rule to the President is the most consequential decision of the Supreme Court to date. Constitutional lawyer and expert, Jill Cottrell Ghai argues that his 'advisory' is actually an instruction to the President and discusses the legal implications in comparison to other jurisdictions where similar decisions have emerged out of the highest court.
Kenya's journey towards a liberal constitution has been long and twisting. The Building Bridges Initiative (BBI) anticipates still undefined changes on the ten-year constitution that some observers view as being informed by selfish commercial and political interests of the political elite. Prof. Yash Pal Ghai, father of the 2010 constitution expresses his concerns as the direction being proposed by political leaders and profound disappointment at the direction matters are taking.
Atsango Chesoni, lawyer, renowned human rights advocate, former deputy chairperson of the Committee of Experts (COE) that finalised the current constitution, former Bomas delegate in the constitution-making process and former Executive Director of the Kenya Human Rights Commission (KHRC) describes the constitution-making process that led to the 2010 constitution. Via a participatory process, the Kenyan people imposed a constitution on their elite. Much as been achieved but the fightback has begun in earnest ten years since its promulgation.
Renown PanAfricanist academic and constitutional lawyer, Prof. Issa G Shivji reflects on the trajectory of constitution-making in Africa. He makes the compelling argument that while we need constitutions, they don’t make revolutions. Revolutions make constitutions. No constitution envisages its own death for that is what a revolution entails. But constitutions matter. Some of the finest constitutions have been erected on ugly socio-economic formations wrought with extreme inequalities and inequities. South Africa and Kenya are examples. He further explains that radical lawyers must recognise the limits of bourgeois law and constitutions because, by its very nature, law individualises collective demands thus fragmenting social struggles and undermining solidarity.
The undermining of the 2010 constitution by the Executive and an emasculated opposition that has failed to defend constitutionalism threaten to unravel thirty years of constitution-building in Kenya. Will the Kenyan constitution die as a result of this? The quick answer to this question depends almost entirely on who the country chooses to be president in 2022 and on who will be the two speakers of Parliament.
Radical lawyers must recognise the limits of bourgeois law and constitutions because, by its very nature, law individualises collective demands thus fragmenting social struggles and undermining solidarity.
The current wrangles in the senate on the revenue allocation formula are a classic example of how the constitution is designed to respond in order to protect itself.