Sunday, May 12, 2024

As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the doors were flung open and everyone and his cat got a Bachelor of Laws degree. One of those obsolete phrases beloved of the ancien régime is "as by law established". I forget the explanation for the tortured phraseology; but it captures the spirit of obdurate stubbornness a certain kind of pedantic lawyer will employ to avoid taking responsibility for anything meaningful.

Anyway, it's not the phrase that animates me today, but the remarkable tunnel vision of constitutional law scholars and practitioners. In recent months, the President and the rest of the Cabinet have announced a raft of revenue-raising measures that will impose significantly higher taxes on the vast majority of the salaried. Because of the errors committed by civil society in the past decade, the framework for public participation that should have allowed the affected taxpayers to weigh in meaningfully on the tax proposals has done little but to rubber-stamp the Government's plans.

Because of the failure of participatory decision-making in this regard, there are those who now claim, ridiculously, that the Government has not been established according to the Constitution. This is revisionist balderdash. When the Supreme Court declared that William Ruth was the legitimate winner of the presidential election, and the other courts decided the other election petitions, and the elected men and woe took their oaths of office, the leadership of the Government was absolutely definitely established according to the Constitution. Not one of the elected state officers holding office today came into office through unconstitutional means.

But because many men and women disagree with the decisions made by these elected state officers, and their failure to fashion an effective framework to hold the elected state officers to account for their decisions and actions, they have began spreading the canard that the Government has not been established according to the Constitution. The failures of civil society since the election of Mwai Kibaki in December 2002 have led us down a terrible path, a path where state officers have little to fear from civil society organisations, human rights defenders or anti-corruption crusaders.

One of the biggest disappointments when it comes to holding the Government to account is the Law Society of Kenya, a Bar association established by an Act of Parliament, and whose members are these days appointed to sit in the Boards of Government-owned entities. The Law Society will not bite the hand that feeds it. Instead, like a house pet, it will roll over on its back so that it can receive the belly rub it so desperately desires. In my opinion, the Law Society was last true to its principles in 2002; every single chairman or president, every single Council of the Law Society, every single Branch of the Law Society, and every single position adopted by the Law Society has existed single-mindedly to ensure that the Law Society, its leaders and members, receive favours from the State. In effect, the Law Society has become a Government-owned civil society organisation. It is not the only one.

Faith-based organisations, labour organisations, employers' organisations, private sector institutions, teachers' unions, even human rights defenders...all of them have become off-shoots of the Government and Government-linked organisations. It is a bit rich, therefore, for some civil society windbags to accuse the Government of not being established according to the Constitution. The past eight years have been particularly fraught when it comes to civil society organisations holding State officers to account. One after the other, men and women have brought suits against the Government for some violation of the Bill of Rights but maybe one in ten have stayed the course without striking out-of-court settlements that have lined their pockets at the expense of the public interest. These charlatans don't even have the shame to deny the charge; they admit it freely and arrogantly because mtado?

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As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the ...