Opinion: Courts hold hope alive in a sea of politicians' greed

Twelve patriotic members of the KDF were blown to smithereens in Gulbeo, Somalia, a week ago yet it didn’t merit a headline or evoke national outrage. Somalia is the forgotten war and soldiers the cannon fodder in a conflict that has no rules.

Some argue that highlighting another slaughter is just giving mileage to terrorists seeking publicity. But denying the victims national recognition is taking their courage for granted and only adding to the pain of their loved ones. Soldiers don’t rank high in the hierarchy of victims or consequence. Politicians take the podium position even if they do much less for the country than the brave military.

The news is dominated instead by endless talk about constitutional reform and it’s all coming from the political elite. Wanjiku has not complained nor has she been consulted. She knows the real problems of the country because she feels the pinch and observes the waste, theft and looting that go unaddressed.

Politicians pretend that with a few more amendments to the 2010 document, we will have electoral justice, equal distribution of resources and never again witness election violence or ethnic hatred. Dream on. The problems the country faces are mostly down to a culture of impunity and institutions that are incompetent, unaccountable and corrupted.

POSITIVE CHANGE

This Constitution may not be a perfect document but it has served the country well. But since Independence, politicians have viewed constitutions as weapons to serve their interests, not that of the public. We seem headed that way again with little room for dissent since that would bring into question the value of the March 9 handshake. We may have a referendum but end up duped into supporting amendments that confirm ‘We the POLITICIANS of Kenya’ and not ‘We The People’.

Before we start repairing what is not broken, we should take cognisance of the positive change that the Constitution is bringing before politicians again emasculate and strangle it.

What comes to mind is how the courts frequently – but not often enough – give flesh to that 2010 document and provide life and hope to the masses for whom the Constitution was intended. In hindsight, we discover a twofold purpose to constitution-making; to curb the abuses of power of the Executive and to empower the 99 per centwho had been excluded from decision-making and wealth-sharing.

Just when you think that it’s only politicians that matter, in quiet courts judges give judgments and directions that restore hope and energy and make one believe that change is still possible and necessary.

The High Court of Kenya sitting in Malindi on April 30 gave one such landmark judgment concerning the manner in which Lapsset was conceptualised and implemented in Lamu.

One brave mzee Mohammed Ali Baddi, with the support of 4,600 displaced fishermen and the legal team of Katiba Institute, petitioned the court on the grounds that there was no public participation, information nor benefit to the local community in this mega-infrastructure project involving neighbouring countries.

DISREGARD TO THE RIGHTS

The court ruled in their favour saying that locals and Lamu County were not involved in its formulation and that the project would destroy Lamu as a World Heritage site and the livelihoods and culture of 25,000 fishermen. The fishermen will be compensated to the tune of Sh1.7 billion.

The court exposed the private deals secretly done to benefit well connected tenderpreneurs and the AG was given six months to produce plans in court to conserve Lamu as a World Heritage Site.

On rights matters, the court’s jurisprudence dealt firmly with the right to life, dignity, culture and freedom from discrimination. The judgment most of all demonstrated that an isolated, apparently powerless community have power to curb and contain an intransigent, arrogant national government that attempts to foist major infrastructural and development projects on communities with complete disregard to the needs and rights of those affected.

The judges delivered justice not only to the Lamu residents, but others negatively affected by the Lapsset project. In their judgment, they did justice to the Constitution and demonstrated its regard and respect for marginalised and vulnerable communities.

The right to public participation and active information from the conceptual stage to the final implementation in mega projects is guaranteed in the Constitution and reinforced by this judgment. We have a pro-people, pro-poor Constitution, don’t allow politicians to trash it on your behalf.