Monday, September 04, 2017

Constitutional crisis? What crisis?!

Do these people even know what a constitutional crisis is? In simple terms, a constitutional crisis is [almost always] a political crisis for which there are no constitutional, legal or political solutions. What the Supreme Court did on the 1st September was not to set Kenya down the path to a constitutional crisis; what the Supreme Court did was to remind Kenyan politicians that all their political institutions and their political ambitions are subject to the Constitution and the rule of law. It was also not a civilian coup as some have hysterically claimed.

A coup, civilian or otherwise, is the unlawful overturning of a government. It is plain to see that our government has not been overturned. Its senior-most officials are still in office, exercising powers and performing duties assigned to them by the Constitution and the laws of Kenya. They have not been arrested, detained or assassinated. No stranger is exercising their powers or performing their duties. In the words of the president, they are in "full command".

We have an elaborate constitution that delves into minutiae that are best dealt with by Acts of Parliament. We have an elaborate constitution because in the recent past, the constitution, Acts of Parliament, judicial and executive institutions and agencies were cudgels used for the marginalisation of the voices of freedom. It is why the manner in which a president is elected is elaborately described in the Constitution. It is why we must surely know that abiding by the provisions of the Constitution and the laws made in fidelity to the Constitution are the surest way to avoid constitutional crises.

The claims of a constitutional crisis are not the only attempts to delegitimise the judgment of the Supreme Court. The very same people who allowed billions of shillings to be spent on the election are now claiming that the Supreme Court is responsible for the "waste". What balderdash! After the much-reviled judgment of the Supreme Court in 2013, after the disgraceful performance of the election commissioners during the hearing of the 2013 petition, it was clear for all to see that we needed a new commission. It took the concerted and charismatic campaign by the doyen of the opposition to remove them from office and to appoint new ones. But his efforts came too late in the electoral calendar and we ended in the Supreme Court once more because of the mess the new commissioners made of the presidential election.

The Supreme Court did not make the former commissioners behave like party commissars. The Supreme Court was not responsible for their removal from office. The Supreme Court did not make the law that demanded expensive voting systems that required considerable lead times to install. The Supreme Court was not responsible for the appointment of a new commission or its shambolic preparations. The Supreme Court was only responsible for reading and interpreting the electoral law, assessing the evidence laid before it, and rendering a judgment for or against the petitioner. Till the moment the petitioner approached the Supreme Court for relief, the Supreme Court had absolutely nothing to do with how fifty billion shillings were appropriated or spent. That is a burden only the National Treasury, Parliament and the electoral commission can bear.

We will vote again in 56 days. We will cast ballots for the presidential candidate of our choice. If the commission does its duty in accordance with the Constitution and the law, the result of the election will be beyond reproach. If it repeats the mistakes that culminated on the 8th August, the Supreme Court will find itself with the unenviable task of hearing a presidential election petition twice in one year. No, that is not a constitutional crisis or a waste of taxpayer monies. That is the constitutional arrangement we promulgated on the 27th August 2010.

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