Tuesday, May 17, 2016

False choices

My thesis is a simple one: the Constitution is a vital tool in restraining the authoritarian instincts of the Government which are usually expressed in laws made and enforced by the Government. A constitution restrains the Government; laws restrain the people. The tension between the two is what civil society should mediate for the benefit of both the people and their government.

The Government will always try to break away from the shackles imposed on it by the Constitution, especially the shackles of the Bill of Rights, while the people will always attempt to overcome the constraints established by the law, arguing that their rights and freedoms are unfettered. In this scenario, an arm of the government that is appointed, not elected, plays the role of the ultimate arbiter of how loose the Government can interpret its constraints under the Constitution and how free a people actually are from the limitations imposed by laws. But it is civil society that should make all of it make sense.

Kenya's civil society was once the envy of the world, articulating the desires of the people who had been oppressed under the laws. It is the libertarian instincts of the people that were expressed in the pamphlets and underground newsletters of the civil society, which formed the basis for a robust examination of what we, as a people, could aspire to in the name of liberty. Sedition laws, enforced with zeal by agents of the state, were the first targets of Kenya's civil society and its successes are reflected in today's robust Bill of Rights.

Kenya's former constitution, interpreted narrowly by the agents of the State, including the judiciary and the Attorney-General, became a weapon against the people, rather than a fetter on the untrammeled exercise of power by the State and its agents. Indeed, some of the interpretations of the former constitution led to perverse outcomes, such as the proscription on the countenancing of the death of the president in any form as articulated by a former long-serving and self-serving Attorney-General.

Today, sadly, the civil society organisations active in the field of constitutional rights is bereft of fresh ideas, selfishly wedded to one political enterprise or the other. The events of the past three years called for a robust debate about what the Bill of Rights means to Kenyans and how it constrains the agents of the State as they go about the enforcement of the laws of Kenya. Instead, we have witnessed even premier organisations such as the Law Society taking political sides without articulating a constitutional idea.

In the past two weeks alone, rather than debate how we might improve our management of elections, especially presidential elections, we have been held hostage to the base idea that the commissioners of the Independent Electoral and Boundaries Commission are the problem (if you are a member or supporter of the Coalition for Reforms and Democracy) or the guardians of an election system with integrity (if you are a member or supporter of the ruling Jubilee alliance). Political disputes have taken on overtones of theocracy on all sides of the political divide; there is great noise but no reason. Civil society has failed to articulate what it means to have a level electoral playing field, what the Constitution demands of us in this regard, what role the Commission plays and what we must do to ensure equity, fairness and justice.

Until we reopen the debate on the constitutional constraints against the Government and the statutory limits of individual freedom, led by the civil society organisations of today, we run the risk of being asked to choose between the false choices of one bad political vehicle against another.

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