Constitution is our refuge against abuse of sovereign power

One of the beauties of the 2010 Constitution is that it was borne out of our myriad experiences in the process of democratic transition spanning over several decades. The several attempts at re-engineering Kenya from the 60’s KPU revolt to the 90’s reform agitation and the final rebirth after events of 2008 produced many lessons that defined what we included in our Constitution.

The Constitution therefore reveals an interesting pattern if one reads it keenly. There are areas where an unusual amount of detail in fairly innocuous matters is included. In other sections, critical issues are glossed over and left to future articulation through legislation or judicial intervention.

This pattern is explained by the fact that on issues that Kenya had not experienced, the Constitution trusted future institutions to give the matter teeth, while in areas where we had already been burnt, the Constitution went into agonising detail. For example, the Constitution states that ballot boxes must be transparent. The same Constitution leaves the critical issue of recall of Members of Parliament to future legislation.

One critical area which in hindsight the Constitution would have given more detail is the currently vexing question on the exercise of direct sovereignty as provided in Article 1 of the Constitution. This issue was never a concern of the drafters. In all our experience as a nation, we had exercised our sovereignty through delegated representatives. I have no doubt that if the framers of the Constitution were writing the Constitution now, they would outline this issue in more detail.

Article 1 which many Kenyans now know about says several things. Firstly, that Kenyans may exercise their sovereignty directly or through their elected representatives. A lot has been made of this point and already several actions have been commenced in various parts of the Country purportedly in furtherance of these provisions. Varied largely partisan interpretations have been given of the purport of this clause. While the framers of the Constitution did not give us as much detail as we would have wished, there are two things that they left clear.

Firstly that where direct sovereignty is to be exercised, it must be in accordance with the Constitution. To buttress this position, the Constitution provides avenues for the direct exercise of sovereign power. The most obvious power, which flows from the right to vote, is the power in Article 104 to recall the peoples’ representatives. While this matter has been treated very casually by Parliament for obvious reasons, the power of recall is one of the most dynamic expressions of sovereignty. It says to elected representatives that they hold delegated power in trust and that the sovereign can take it away.

Another opportunity for direct exercise is set out in Article 257 where the people are granted the power to amend the Constitution through a popular initiative. While this latter process is quite convoluted, it is yet another clear expression that the people are not held at ransom by their representatives; they can take charge, even to the extent of amending the Constitution.

These and other provisions indicate that where the Constitution expected the people to exercise power directly, it provided how it would be effected and even the thresholds of what “the people” would mean. This was in recognition of the reality that “the people” always have differing perspectives on critical issues and that a failure to regulate that important right would easily result in anarchy.

Secondly the Constitution is clear that there can be no exercise of sovereign power that violates the Constitution. For instance, some of the issues currently being legislated by some County Assemblies directly violate Article 185 and 191 on the legislative jurisdiction of County Assemblies and will no doubt be put to judicial and other tests. My point; while we must support the principle of direct exercise sovereign power, those who exercise sovereign power directly must stay within the four corners of the Constitution. They must not, in exercising power directly, violate the Constitution. This Constitution is ultimately our only refuge against arbitrariness both against each other and from the State.  

- The writer is an Advocate of the High Court of Kenya