Defending the Constitution is not a task exclusively reserved for any one institution. Indeed, in any democracy it is to be expected that every now and then somebody or other will over-reach its authority, powers or mandate and try to force through rules or actions that are unconstitutional. Eternal vigilance is the only cure against this, with other institutions created to provide checks and balances being called in to prevent a constitutional breach. This, we believe, is how Kenyans should view the ongoing furore over the controversial amendments pushed through by Parliament last week.
Numerous petitions have been filed with President Kibaki and Prime Minister Raila Odinga calling on the Executive to reject proposed changes to electoral laws that go against the letter and spirit of the 2010 Constitution. Church leaders, lawyers, civil society and ordinary wananchi oppose efforts to scrap academic requirements for key elective posts or change the rules to give presidential aspirants a lifeline should voters reject them. Both rules have enormous support from a public concerned at the type of people finding their way into Parliament and power.
Other objections have been raised over new changes to the vetting of magistrates to allow the Judicial Service Commission to do the job and alterations of the Political Parties Act to allow party hopping. On these, the Constitution Implementation Commission led by Charles Nyachae, and Parliament’s Constitution Implementation Oversight Committee, led by Mandera Central MP Abdikadir Mohammed, do not see eye to eye. As a result Parliament is at odds with much of the country over the changes. This is not a crisis, merely a disagreement between the people and Parliament because the house has put personal interest ahead of its public duty. This is not the first time this has happened and there is ample precedent for how to navigate out of this controversy safely. Kenyans are counting on the President, or rather the presidency, to undo what Parliament has done.
Petitions galore are being prepared on this front: The Law Society of Kenya, Federation of Women Lawyers (Fida), Church leaders, and even MPs all have some part of the law they contest. We trust the President will consider each and every one of these petitions seriously and, taking into account public interest, return the offending Bill to Parliament with suggested changes to bring it in line with public expectation and the Constitution. He has done so before and there is no reason to prematurely assume he will fail the country now. Should he disagree with the people, however, let us not forget that there are other avenues for redress.
Attorney General Githu Muigai has defended Parliament’s right to make law as it sees fit, irrespective of whether such laws are constitutional or not. His message is that those aggrieved by the National Assembly’s actions should challenge them in court. Some have mistakenly interpreted this as a dismissal of credible concerns about what the MPs have done. We see Prof Muigai’s remarks as a defence of the process, not its offspring, and, therefore, correct. The House may have birthed a Statute Law (Miscellaneous Amendments) Act whose provisions are clearly foul of the Constitution, but this is technically something they are empowered to do. The Constitution, however, affords the people other avenues – through the two other arms of Government – to strike down the offending pieces of proposed legislation both before and after they make it to the statute books. Presidential assent is not a given. Neither is judicial support should a challenge follow such assent. If the presidency does not protect us from this mutilation of the laws, then it is to the third arm of Government, the Judiciary and its Supreme Court, that we should turn.
Only in a conspiracy of all three arms of Government to force through an unconstitutional law would there be cause for alarm at the rape of the Supreme law of the land. Rather than decry this controversy as a sign that the forces of impunity are working against the implementation of the constitution, we should see it as another opportunity to demonstrate the supremacy of the new law.
Think back to the attempts by the Executive in the months after the new law was passed to push through public appointments and other changes without following the procedures anticipated by law. The excuse has invariably been the extenuating circumstances of the transitional period. Where the public disagreed strongly and sought redress from the other two arms of Government, the executive was forced to backtrack. It is now the turn of the Legislature to hear the voice of the people. Let us have faith in our institutions: They may be flawed but they have not failed us yet. in the tax net will willingly continue to bear the burden of large welfare families.