The desire to genuinely belong and be fully accepted is at the centre of our daily interaction with fellow human beings.
That is why constitutions are about securing not only our peaceful coexistence with others, it is also intended to secure our side of the social contract with the State.
The relationship between the Government and citizens sit at the very centre of the Constitution forming the whole chapter on bill of rights and many other articles.
Contrary to popular belief, governments (the Executive) rarely exist to foster and uphold the liberty of citizens. Given a chance, most governments would rather be biased towards enforcing security and order; matters that are for the most part diametrically opposed to civil liberties.
Differences between the Executive and the Judiciary or the legislature are to be expected. Kenya is merely at the nascent stages of the democratic experiment. Contrary to popular belief, we have never had a democracy. True we may have had elected governments since independence.
Yet an election where there is no separation of powers between the three branches of Government is a mere routine exercise. Unless the Government is able to check itself and be subjected to constant scrutiny by the Fourth Estate (the media), it is in vain that we take pride in the judicial and legislative process.
The Executive has of late found itself constantly irked by court rulings.
In a mature democracy, this need not be. Chapter ten article 165 gives the High Court “jurisdiction to hear any question respecting the interpretation of this Constitution.”
More fundamentally, it allows the court to determine “whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of this Constitution.”
Former America Jurist Oliver Wendel Holmes when admonished by a friend to make sure he did justice retorted that his work was to uphold the law.
The vetting of judges and magistrates is still on. We have seen judge’s severely punished for errors in judgement, laziness and giving skewed judgements in favour of the Government of the day.
History can show that the Judiciary elsewhere has at certain stages of its life seen it fit to make politically correct judgements.
The infamous Dred Scott Decision of the United States Supreme Court ruled that blacks (slaves) were property and not citizens.
They did this never mind that the declaration of independence talked of all men being born equal. Later the American courts sanctioned the transfer of Japanese Americans inland ostensibly to stop the possibility of them spying for “fellow Japanese” during Second World War. No American judge has ever paid for such blatantly skewed judgement.
The frames of our Constitution on the other hand chose to make an example of our judges. Sadly no one has come to their rescue. So it appears judges have made up their mind not to please anyone.
They want to follow the law as it is and are not being activists as claimed.
Activism would involve judges infusing broader understanding in their judgement so as to afford the populace a right not expressly granted by the Constitution. So far judges have yet to take that route.
So why the hullabaloo? It is merely a question of whether we have resolved to grant full citizenship to Kenyans or whether we still want to treat one another as subject
On the theme of citizenship, Mahmud Mamdani has lamented that independent Africa does not in any way differ from apartheid South Africa in treating a class of its population as subjects and therefore not deserving of the glorious serving promised by the Constitution.Citizenship in neo-colonial Africa is affordable by money and status and not necessarily a wad of papers that prove you belong.
Prof Kenneth Janda tells us that by having a say on who may become judge the Executive and legislature link the Judiciary to democracy and by ensuring that its actions conform to the Constitution, the Judiciary links the Executive branch to the Constitution not bad, you may think.
The writer is Editor for Community Eye
