Wednesday, July 24, 2013

What price our contempt?

An argument that is being advanced by the disappointed supporters of Kethi Kilonzo is that the courts must look for the "spirit of the law" when making decisions. This is one of the stupidest ideas ever advanced in free Kenya. Not the "spirit" part, but that this principle should be applied at the first instance. A corollary to this proposition is that the courts must apply the technical rules of the court or the law while arriving at decisions that have a huge public interest. Again, this is sheer lunacy.

These ridiculous arguments have been advanced since the ill-fated Raila Odinga petition against the election of Uhuru Kenyatta was dismissed by the Supreme Court. The decision of the Supreme Court was hugely unpopular in CORD strongholds, and while the former Prime Minister and former Vice-President claimed that they would accept the verdict of the Court, their utterances, and those of the lunatic fringe of the CORD bandwagon, belie the acceptance of the Supreme Court's decision. When Mutula Kilonzo died, and the idiots in Jubilee decided to wade into the by-election by promoting the candidacy of his widow (before she eventually withdrew from the race), the more excitable elements of the CORD army decided to promote Kethi Kilonzo as the panacea for their shambolic political activities since March. But a series of mis-steps by the popular lawyer put paid to her political career before it even began.

It is at this point that the strange calls for upholding the spirit of the Constitution were made. First things first: there is always a presumption that the drafters of the law knew what they were doing, and that they intended to do what the law says. The first responsibility of the court is to look at the letter of the law. This includes the rules of the court. If we were to operate outside of the rules we ourselves have drafted, then the existence of those rules is redundant; we could as well live in a state of perfect anarchy. You only look to the spirit of the law when it is apparent that the legislative intent of the law cannot be discerned. Statutory ambiguity will trigger a search for the spirit of the law.

What is awkward is that the Kethi Kilonzo cheering squad seems to believe that the spirit of the law could only have favoured an interpretation of the law that promoted her interests, and not those of any of the other parties to the dispute, especially not the Independent Electoral and Boundaries Commission. Indeed, it seemed at one point that her lawyers intended to argue that because the IEBC was a singularly inept and incompetent institution, and despite the fact that it could justifiably be demonstrated that she committed electoral offences, the courts should ignore the "self-serving" ruling of the IEBC "tribunal" and allow Kethi Kilonzo to stand for her late father's senate seat. They added, repeating an argument that had been rejected by the Supreme Court, that the technicalities of the process should not apply because it was in the greater public interest if Kethi Kilonzo vied for the Makueni Senate seat despite not being a registered voter anywhere in Kenya.

These arguments are of a piece with the "democratisation" of the nation since the 2002 NARC victory. The effect has been to make Kenyans ever more contemptuous of the law, especially Kenyans in positions of power or authority and those who hang around them. It is why governors see no irony in using sirens and chase cars to avoid traffic jams wherever they find them and conveniently forget that if they were effective governors, there would be no traffic jams to begin with. It is why more and more Kenyans are seeing their properties being demolished by road construction crews claiming that they "followed the procedure" when they were irregularly allocated land in road reserves or some other public land, when they had the allocations legitimised with title deeds and when they studiously ignored municipal laws when they proceeded to build on their ill-gotten properties. Many are now praying for the sympathy of Kenyans who did not have the opportunities to game the system as the road-reserve victims did. What is notable is that Kenyans are not outraged that these people lost property because of the corruption of the agents of the State; they are outraged that they are not as "smart" as the men and women whose houses now lie in ruins.

Our continuing contempt for the law, the rule of law or the mores and customs that should inform our day-to-day lives is proof positive that regardless of the lofty aims contained in the Constitution and the laws of Kenya, our obsession with power, money and the attendant trappings have blinded us to concepts of decency and decent behaviour. It is why we see nothing wrong in the son or daughter of a powerful man inheriting his political mantle even if she has to do unfair things to do so. Whatever the motivations, it is wrong to encourage people to have a jaundiced view of the law or its institutions. The more their contempt for these things grows, the less likely they are to have a shared national purpose, vision or mission.

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