By Charles Kanjama
There is a passage in JR Tolkien’s ‘The Lord of the Rings’ when the hobbit Frodo speaks to the wizard Gandalf, “You are wise and powerful. Will you not take the Ring?” “No!” cried Gandalf, springing to his feet. “With that power I should have power too great and terrible. And over me the Ring would gain a power still greater and more deadly... Do not tempt me! I dare not take it, not even to keep it safe.”
Only the simple hobbit Frodo could keep the one ring of power safe and preserve it from falling into evil uses. Because hobbits were a small hardy people, a simple common folk not given to extraordinary adventures. They focused on themselves, and had no wish to dominate others.
Tolkien’s hobbits are a metaphor for the common man. And this common man is the only person modern democracy trusts to ultimately rule over us. Not the philosopher kings of Plato’s ‘The Republic’, not the wizard Gandalf, nor the elf-queen Galadriel. Democracy trusts not the wisdom of philosopher kings, but the common sense of the common man.
In English common law, the common man was sometimes called ‘the man in the Clapham omnibus’, or simply, ‘the reasonable man’. He appeared often in court decisions as the minimum standard of conduct for all persons.
He was common, not exceptional, even though his qualities were often idealised into some form of average perfection.
The English legal writer Winfield described him in a famous passage as follows: “He has not the courage of Achilles, the wisdom of Ulysses or the strength of Hercules, nor has he the prophetic vision of a clairvoyant. He will not anticipate folly in all its forms but he never puts out of consideration the teachings of experience ... He is a reasonable man but not a perfect citizen, nor a paragon of circumspection.”
In East Africa, the ordinary man was described as the man in Owino Market (Uganda) or the man in the Eastleigh bus. The Ugandan writer Okot p’Bitek composed an epic Luo poem, Song of Lawino, on the average African woman perplexed at colonial culture’s destruction of African traditions.
Marjorie Macgoye’s renown poem, A Freedom Song, on a hapless house-help, exposes a disturbing aspect of the common man, “Atieno washes dishes, Atieno plucks the chicken, Atieno gets up early, Beds her sack down in the kitchen, Atieno eight years old, Atieno yo.”
During Kenya’s Constitution reform process, we finally got our definitive version of the common man, who was baptised ‘Wanjiku’ by former President Moi. Despite all the challenges and weaknesses of Lawino, Atieno and her last reincarnation, Wanjiku, it is she we trust to rule over us. Because we know that the average Wanjiku can wield Tolkien’s ring of power without corruption.
Supremacy of the Constitution therefore means a law at the service of and under the control of Wanjiku. It is Wanjiku who is supreme; not the Judiciary, Executive or even Parliament. Since Wanjiku can only rule indirectly, she divides the power of governance and distributes it to the three arms of Government, each superior in its sphere, and none having the final word in applying the Constitution.
Wanjiku does not want any arm or organ of Government to abrogate to itself the supreme constitutional power. Because neither the wizard Gandalf nor the elf-queen Galadriel can take up this power without abusing it. Wanjiku prefers to trust her own common sense and the democratic process, which brings out the most common in common-sense and makes it rule over us.
This commonsense often manifests itself as tradition, which G.K. Chesterton called ‘the democracy of the dead.’ So in Kenya’s ongoing reform and electoral process, Wanjiku must reject those who only seek reform for its own sake, who want to destroy social institutions whose functions they do not understand. Such alleged reformers are the real enemy of the common man.
The writer is an Advocate of the High Court
