Citizens in a democracy don’t owe loyalty to the President

It's critical for a constitutional commission to distinguish between loyalty to the republic – by which I mean the people of Kenya – and fealty or subservience to the head of state. Citizens in a democracy don't owe loyalty to persons in power. The reverse is true – it's the people in power who owe loyalty to the people. That's because the people in power are servants, not masters, of citizens. The people in power don't have any authority of their own. Their power is donated – delegated to them – by the people. That's why the people have the inherent power to withdraw their delegated authority to the state. Unfortunately, many public officials labour under the delusion of being overlords.

In a democracy, the people are "citizens" but they are "subjects" in a dictatorship or monarchy. In 2010, Kenya transitioned from an imperial executive to a devolved democratic state. Under the pre-2010 constitution, Kenya was a republic only in name. The normative edifice and structures of the state pivoted on a culture of dictatorship and a legacy of an imperial executive. In that constitutional dispensation and political culture, loyalty – not citizenship – were paramount. The 2010 Constitution changed all that – citizens now owe loyalty to the republic through their own conscience. The head of state has been de-centered as the fulcrum of society.

Invalid election

It's not a secret that I authored a highly visible tweet in 2013 in the aftermath of the presidential elections that year. In the tweet, I questioned the legitimacy of the Jubilee regime. Specifically, I tweeted this – "As a matter of freedom of conscience and thought, I can't accept Uhuru Kenyatta as President of Kenya. I can't and I won't." My views were based on what I regarded as an invalid election and the case for crimes against humanity that Mr Kenyatta faced at the International Criminal Court. In my view, neither the IEBC nor the Supreme Court's declaration of Mr Kenyatta as the de jure and de facto President of the Republic of Kenya could override my conscience.

Let's be clear. At no time have I ever argued the IEBC and the Supreme Court did not declare Mr Kenyatta the President of the Republic of Kenya. But with all due respect to the IEBC and the Supreme Court, I totally disagreed with their pronouncements. What's the obligation of a citizen who finds herself in such a predicament? What's one to do when they are caught between their conscience and the pronouncements of constitutional bodies, especially the highest court in the land? I believe the Constitution is crystal clear on this matter. Section 32(1) of the Constitution provides that "Every person has the right to freedom of conscience, religion, thought, belief and opinion."

Section 32(1) is unequivocal. It doesn't qualify or limit the freedom of conscience. I would argue that a free conscience is the foundation of the 2010 Constitution. That's why as a citizen, I could freely express myself about the 2013 presidential elections and the legitimacy of those declared elected and sworn into office. My views were not based on the person – Mr Kenyatta – who was declared the de facto and de jure President. I didn't – and still don't – care about the outcome of the election per se. My beef was with the process itself. Nor was the personal identity of Mr Kenyatta at the ICC the issue. I would've opposed CORD's Raila Odinga if he was before the ICC.

Democracy only thrives where there's dissent. Democracy isn't possible without dissent. I've said if I was a judge on the Supreme Court, I would've dissented from the majority on the presidential petition. The dissent would have meant that I questioned Mr Kenyatta's legitimacy as President. But the dissent wouldn't have made me unfit to be a judge on the court. Nor would it have meant I was disloyal to the republic and the people of Kenya. The Supreme Court only functions as a pillar of democracy and the rule of law because judges can dissent on the most important constitutional questions. The judges must be guided by their conscience and the constitution.

Denied access

It's anathema to constitutional democracy to require citizens and public servants, especially judges, to be personally loyal to the person of the head of state. The fidelity of citizens is to the Constitution and the republic. It's illegal for a constitutional commission to set as a litmus test for public office loyalty to the head of state. Section 32(3) of the Constitution is clear: "A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person's belief or religion." It's the professionalism to work together with mutual respect for other public officers – not loyalty to a natural person – that matters.

 Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.