Enforcing Constitution promotes rule of law, national development

By Ndung’u Wainaina

The Constitution, being the domesticated will of the people and their social covenant, form the touchstone of the rule of law. Rule of law is of great consequence to national cohesion, development and citizens rights. The Constitution and the system of codes, laws and rules define the legal framework and the Government structure within which socio-economic and political activities take place.

How the interpretation, application and enforcement of the Constitution is done determine the effectiveness of upholding the rule of law and enjoyment of rights and freedom by the people.

Without the rule of law and respect for human rights; without transparency and accountability; and unless Government derives its authority and power legitimately from the people, the path to prosperity is likely to be more difficult, and gains could remain fragile and reversible. 

The rule of law is reliant on the balance of two authorities: the degree of good governance as administered by the sovereign power of the people and the degree of citizen participation (known as citizenry power). These are the two active powers that will determine the respect for rule of law in a country. Public accountability rests on giving an account and on being held to account.

All Government departments have to be efficient to ensure value for taxpayers’ money. Efficiency encompasses the qualitative and value-laden expectations of the society.

It can be argued that accountability is the fundamental prerequisite for preventing the abuse of power and for ensuring power is directed towards the achievement of efficiency, effectiveness, responsiveness and transparency.

An open, transparent and accountable Government that promotes and enforces the rule of law heralds an imperative prerequisite for community-oriented public service delivery because without it, unethical behaviour will result.

The function of the rule of law within a political process flows from the sovereign power through a set of laws, over a network of institutions, directed at national development and progression, and on to the citizens who are expected to act and perform in accordance with clear rules. 

In this aspect, rule of law sets out the system of laws and practices by which the Legislative, Executive and judicial branches of Government contribute to the prevention of the arbitrary exercise of their respective powers upon the citizens, through the preservation of citizens’ rights in order to advance compliance, sustainability and predictability of laws for the purpose of generating a well-ordered society that shall in turn create and influence the conditions for national development.

In this regard, the State should strengthen the rule of law, which proceeds to guarantee citizens security, justice and equal access to opportunities.

The challenge therefore before Kenya is how to entrench and enforce rule of law and its instruments inter alia: independence of the Judiciary, effective administration of justice, right to a fair trial, access to a court, accountability of State institutions and officials.

Respect for laws in public administration, right to legal assistance and respect for the human rights of persons; prevention of rights violations; awareness-raising and education on the rule of law for the legal professions and the public; provision of effective legal remedies and access to the same; adherence to rule of law standards and practices in the criminal justice system; and the fight against corruption.

Parliament bears the burden and responsibility to formulate good, sound and strong laws, articulating citizen preference and public need. Laws are good when they create rights, stimulate opportunities for growth, facilitate the management of national economy and protect people and investments. 

They are sound when they involve legal certainty, contain no infirmities, are consistent with international standards and are predictable and enduring. They are strong when they are stable but not stagnant and can break down trade barriers to allow foreign investments to come in. Good laws stimulate compliance. Compliance to laws is respect for the rule of law.  

The Executive bears the responsibility to enforce the law through its bureaucracy, by way of orders, proclamations and implementing rules and regulations in accordance with the spirit and letter intended by Constitution.

It is mandated to bring out the effect of such laws pursuant to the objectives they were set out for. The onus of law enforcement is addressing laws to their intended beneficiaries, balancing the various interests in society in order to form the synergy required for progressive-oriented actions. 

Proper use of laws will induce obedience to laws and regulations. Building capacity and developing an attitude for ensuring compliance to laws is an order for the Executive, with a duty to close gaps between legal pronouncements and enforcement while infusing transparency and accountability into the enforcement process.

The absence of the rule of law is absence of public order and closes the doors to investments. In this age of globalisation, lack of capital will impede national development.  While the Legislative and the Executive participate indispensably in establishing the force of rule of law upon society, the heaviest burden of upholding the principle is loaded on the shoulders of the Judiciary, as the guardian of the rule of law.

While a system of checks and balances aligns and delineates the respective jurisdictions of the three powers, judicial reach covers not only citizens but extends even over their co-equal branches through judicial reviews in order to determine whether or not Legislative and Executive acts lie within the bounds of the Constitution, to which pronouncements Parliament and the President must defer.

Investors go where the legal system provides recourse when their rights are denied by private parties or by public administration. Legal systems that provide strong legal protection for offended parties and investors will allow the implementation of reforms and market-oriented programmes executed and protected under legal basis, thus making risks predictable and calculable.

The writer is Executive Director, International Centre for Policy and Conflict.