Monday, July 20, 2020

No one wants that

One of those "read my CV" types had this to say on Twitter about the wayward senator:
If the president who is Commander in Chief announces curfew starts 9PM but Kenyans including elected leaders are out casually drinking and dancing at 2AM, then the question must be asked; do Kenyans even respect the resident??! this is crazy SMH.
We'll leave the punctuation for now and pay greater attention, instead, to the implicit assumption that what a president says must be obeyed. It implies, in my opinion, that the president is some sort of king whose word is law. After all, taking that logic to its ultimate end, a Commander-in-Chief must be obeyed because he is the Commander-in-Chief, if for no other reason.

Many Kenyans, including the president, have repeated ad nauseam that Kenya is a "nation of laws". Few of those pining for the glory days of the imperial presidency, though, believe it. So many of them erroneously impose additional interpretations on that maxim, including that the president's word is law. You can see such assumptions in the way "presidential directive" is used to push through agendas that fly in the face of constitutional, statutory and regulatory propriety and lead to absurd and tragic outcomes.

It is impossible to persuade these types that "commander-in-chief" for an elected president is not the same thing as the head of a military junta that has suspended the constitution and is ruling by fiat. It is impossible to persuade them that Kenya has explicitly and expressly rejected the concept of a king or emperor. Kings and emperors are never elected. Heads of military juntas are never elected. Ruling by fiat is not in Kenya's constitutional order. If the president's "announcements" are not translated into Acts of Parliament or subsidiary legislation made thereunder, then they have little, if any, legal effect. It is possible that the "announcements" are a window into the policy direction taken by the executive, but it is a mistake to take them as laws to be obeyed on the pain of judicial punishment.

The most important object of the Second Liberation was to corral the imperial presidency within the confines of the constitution, to limit its impunity, and to prevent its abuse. The presidency is meant to be exercised in accordance with the constitution and the laws made by Parliament. It is not, regardless of the feverish desires of its boosters, meant to be exercised contrary to the written law even in dire emergencies. Three months after the announcement of the first case of Covid-19 in Kenya, it is no longer an "emergency" but a crisis that must be managed by the machinery of the state within the confines of the constitution and the written laws of the land. Presidential announcements are not law. They are not intended to be laws. They cannot be taken to be laws. To suggest that they are is to harken to a bygone and hated past.

We fail to appreciate the effects of presidential impunity in a democracy - it gives license to one and all to play fast and loose with the rule of law. We get to pick and choose which laws to obey, which ones to bend, which ones to ignore and which ones to break. The wayward senator is of a piece with the imperial presidency and the murderous, extra-judicial-killing police. The skein is the same. The effect is a lack of confidence in the institutions of the state and a distrust of the constitutional, statutory and regulatory order. Our national purpose is subverted when we elevate the presidency above the law and preach the virtues of such extra-legality. In the end, if such bad constitutional ideas are allowed to fester and spread, we end up where we fled from: presidencies for life, single-party dictatorships and widespread impunity. No one wants that.

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