Let it be impossible that anything should be done which is unknown to the nation--prove to it that you neither intend to deceive nor to surprise--you take away all the weapons of discontent. The public will repay with usury the confidence you repose in it (Bentham, 1839)
There is an old saying in my ancestral locality of Mt. Elgon that "Judges put on their trousers one leg at a time, just like everybody else." If I understand this slightly sexist statement correctly, it refers to the ineradicable subjectivity brought to the legal system by the very fact of the judge's humanity. From it, we can adduce examples of commonsense justice and its negative counterpart, irresponsible judicial meddling.
The post-election violence (PEV) of 2008 that mostly shaped the current 2010 Constitution was largely blamed on judicial meddling by the executive. As the country marks five years of its current Constitution, there is growing interest in the cultural interpretations of justice in relation to the Constitution. Back in Mt Elgon, justice is considered the principle virtue, the source of all the others in a locality that takes full pride in its status as the 'cradle of humanity'.
In his numerous contributions to the Kenyan 'struggle', the great "son of Oyondi", the late Martin Shikuku, a long term Member of Parliament for Butere constituency in the country's then Western Province, suggested that "We must still deal with that problem" as a philosophical Common Ground for looking at the Kenyan Constitution. His metaphoric social reification was making a stunning reference to the fact that between 1963 and 2005, the Kenyan Constitution underwent very many amendments that it could no longer be classified as rigid. Most of the amendments were not intended to improve the quality of the Constitution, but to entrench an authoritarian and undemocratic administration. Other amendments were intended to solve political problems facing the government from time to time. Most of the amendments were carried out by a Parliament dominated by members of the ruling Kenya African National Union (KANU) party. Contrary to what Kenyan constitutional scholar Yash Pal Ghai had observed that the notion of a constitutional order is broader than merely the text of the constitution. "It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature being the depersonalisation of power" (Ghai 2009: 1). Since my interview with Shikuku in summer of 2009 at Cambridge University, and the Kenyan legal stage no less fraught with confrontation, his call remains strikingly relevant in Kenya's everydayness expressivity.
On 28th of August 2015 as Kenya was marking five years of her current constitution, the Chief Justice Dr. Willy Mutunga in a speech echoing James Madison's words observed that "the fight for a new constitution continues beyond its promulgation. The task of living the letter and spirit of the new Constitution is yet another phase of that struggle that all Kenyans and all institutions must play a key role in" (Daily Nation, 28 August 2015). Like Dr Mutunga, James Madison, the principal architect of the American Constitution and later its Bill of Rights, had no illusions about the efficacy of written limitations on government. "Experience assures us", he wrote in the Federalist Papers in 1788, "not to place too much faith in 'parchment barriers'" against infringement of the separation of powers.
In the premise of the German sociologist Jurgen Habermas' 'communicative action', Madison's 'parchment barrier' fears and Shikuku's 'we must deal with that problem' purview are illustrative of critical praxis in addressing socially and politically constitutive natures. They both reinforce the notion that in order for the constitution to work, it must be taken dialogically serious both by the public at large as well as public officials. According to Habermas, communicative action is reflective in the sense that participants in an argument can learn from others by reflecting upon their premises and questioning suppositions that typically go without question.
The criteria of argumentative speech, which Habermas identifies as (1) the absence of coercive force, (2) the mutual search for understanding and (3) the compelling power of the better argument, form the key features from which intersubjective rationality can make community communication on a constitution possible. Communicative action is as such, action that results from such a deliberative process of interaction and common agreement of interpretations of situations (Habermas, 1984).
Habermas' philosophy aside, Madison and Shikuku's metaphoric connection of the constitution between the dichotomies of the 'community' and the political 'establishment' silently exclude the possibility that disorder may be peaceful and the constitutional order violent. Historically, constitutions used to be largely about the allocation of public power and the structure of the state, rather than values and principles. It has been noted elsewhere that the ideas that we now associate with constitutionalism emerged in society, not the state, and to a great extent reflected changing economic and class structures (Ghai, 2014: 119).
Professor Paul Ekins in his 1992 book a New World Order demonstrated that one way in which constitutional violence works is by changing the moral colour of an Act from wrong to right or to some other intermediate meaning which is palatable to the status quo. For instance, shortly after the (s)election of Daniel Toroitich Arap Moi as President of Kenya in 1978, following the death of the first president Jomo Kenyatta, Moi pronounced fewer but far reaching changes to the Constitution that completely altered the constitutional architecture of Kenya and severely undermined the enforceability of the Bill of Rights. Some of the changes he made included the introduction of section 2A to the Constitution, which converted Kenya into a de jure one party state. It outlawed all forms of political opposition and gave KANU, the ruling party, the monopoly of power. No person could be elected into any political office unless she or he was a member of and was nominated by KANU. Cessation of KANU membership led to loss of political office. The amendment was motivated by leaked information that Mr. George Anyona and Mr. Oginga Odinga, both veterans of the Kenya independence 'struggle', had an intention of forming a new political party. Mr. Odinga was expelled from KANU while Mr. Anyona was detained.
From Moi's authoritarian presidency and 'Acts' we learn that orderly violence works by making reality opaque, so that we do not see the violent act or fact, or that when we see it, we do not see it as violent. Some instances include preventing consciousness formation (conscientisation), the penetration and conditioning of the mind from above, and segmentation (with those below getting a limited vision of reality); as well as preventing mobilisation and organisation of those below (i.e., fragmentation, splitting those below away from each other, marginalisation, setting those below apart from the rest).
Blocking community conscientisation and mobilisation was Moi's way of preventing the processes needed to transform the interests of communities in a structural conflict into consciously held values.
In Kenya, the association of violence with the constitutional order was not only a Kenyatta or Moi affair, as the executive, there are widespread and credible allegations that the legislature and the judiciary have also been abusing their powers and engaging in, or facilitating, corruption [i] Daily Nation, 10th December 2005). The problem reflects a general trend of socio-cultural as well as political experientialism.
Nowadays, the regular reports of Members of the County Assembly (MCAs) and Members of the National Assembly (MPs) bouts, fistfights [ii], shout and disappointed citizens are a common phenomenon. A recent British Broadcasting Corporation (BBC) video report showed four Kenyan lawmakers assaulted and another two engaged in a fist-fight during a heated debate in parliament over a controversial Security bill that the government claimed it needed to fight al-Shabab, the militant Islamist group linked to the international terror network al-Qaeda that are threatening Kenya's security. "Opposition MPs shouted and ripped up copies of the bill, warning that Kenya was becoming a 'police state'. Parliamentary officials adjourned the debate twice, before the controversial changes were eventually pushed through" [iii]. In more ways than not, these physical fights in the houses of parliament serves as canonic representations of contemporary Kenyan political culture, spelling out the difficulties and challenges that Kenya and many African countries continue to face in terms of sustaining democracy and maintaining the spirit of the Constitution.
How We Got Here
Indeed some of the main reasons why Kenyans agitated for a new constitutional framework included the culture of impunity and the weak institutions of governance that were unable to enforce the law. One area where this was felt most was in the administration of justice. As pointed out by Alex Thomson in his publication An Introduction to African Politics, (2000) the institutions that oversaw the administration of justice in Kenya had been weakened to an extent that, by and large, they were serving the interests of the Executive, other than the public. As such, there was a dialogical unanimity among stakeholders that Kenya needed a new Constitution to provide a framework for societal transformation. This led to the agitation for a Constitutional Review. This in turn eventually gave birth to the current Constitution in August 2010.
Thus, in my view, the main impetus of the current Constitution was...