When will the real debate begin?

The debate on the morality or otherwise of high government officials will not die down. The battle over whether or not Dr Willy Mutunga and Nancy Baraza should be confirmed as Chief Justice and Deputy Chief Justice refuses to die down because the debate surrounds an issue with which many Kenyans have an opinion, though seldom a rational one. The position of Kenyan clergy is known, though it remains unclear. They have their supporters who have taken the contest to levels hitherto unseen in public discourse in Kenya. Some of the personal questions that were levelled at the nominees were questions Kenyans would not ordinarily have asked in the past. This is progress, of sorts; Kenya in the 1980s and 1990s was a country where even to ask a legitimate question was to invite unmitigated disaster in one's life. It is this aspect of the very public interviewing and vetting of the nominees that Kenyans must examine if they are to be at peace with the Constitution that they promulgated in 2010.

The Constitution is meant to organise the relationship between the people and their government; everything else is of lesser importance to this question. The history of this nation is of the president reading significant power from the Constitution and employing that power to rule, rather than to govern. The Swahili translation of "Attorney-General" should be "mwanasheria mkuu" and not "mkuu wa sheria" as has been the norm, yet this mistranslation goes to the heart of the relationship between the people of Kenya and their government, especially their Executive in the form of the President and his Cabinet. It is for this reason that every time there is a national crisis where Kenyans are victims, their preferred solutions always begin with the plea, "Ninaomba serikali ..." imbuing the government with almost mystical powers to solve their problems and rescue them from the plight they find themselves in. The President and the Ministers and Assistant Ministers in his Cabinet enjoyed untold power to make decisions on behalf and for the people without oversight or right of appeal. As a result, they enjoyed a free hand to do pretty much as they pleased. The Constitution of Kenya, 2010, is an attempt to shift the balance away from an overmighty Executive to a more representative and accountable dispensation.

However, in interrogating the qualifications or otherwise of the Judicial nominees, and to a lesser extent that of the DPP, the debate has firmly focused on matters that are not the preserve of the Constitution but of the cultural and spiritual guides of the nation. As a result, important questions regarding the future relationship between the people and the government remain unanswered and unconsidered. In our zeal to participate in the almost salacious examination of Dr Mutunga's and Ms Baraza's personal lives, we have failed to answer a more critical question: will they have the courage to make pronouncements that affirm the constitutional sovereignty of the people of Kenya over their government, or will they rule to affirm that indeed, the President and his Cabinet will continue to enjoy untrammeled powers to do as they please?