Lessons from the USA

What do you remember of the process that led to the appointment of Chief Justice Martha Koome? Do you remember how many applicants there were for the job? Do you remember that they were “interviewed” by the Judicial Service Commission or that they were “vetted” by the National Assembly? The interviews and vetting of the ultimate nominee were televised but I can honestly declare that I don’t remember much about it. Maybe the allegations of plagiarism leveled against an applicant by her students and the smug arrogance of another applicant, jacket off, that had the whiff of “Mta-do?” come to mind. Maybe they don’t.

In contrast, even from 8,000km away, I can recall key moments in the vetting of Associate Justices Gorsuch, Kavanaugh and Barrett by the United States Senate. Despite the obvious histrionics of the highly motivated partisans, the public vetting of the justices revealed a considerable amount about their judicial principles and philosophies. As has the most recent vetting of Judge Ketanji Brown Jackson. The degree to which their judicial records have been publicly scrutinized even before they sat before the US Senate was illuminating and when they were sworn in, it was clear where they stood on key constitutional and legal principles. I challenge you to say with confidence what Chief Justice Koome’s or Supreme Court Judge William Ouko’s constitutional and legal viewpoints are. (Both were appointed to the Supreme Court at the same time.)

Instead, the main topic of national discussion remains who will be president and even this discussion is not held on the basis of the political philosophies of the candidates rather than their perceived ability to mobilize tribal and ethnic vote banks in their favor. How the US chooses its judges is filled with political spectacle but the spectacle is not an end in itself; it serves the valuable task of indicating to a high degree of confidence whether or not their judicial officials can be trusted to do their job with impartiality and fairness. How Kenyans choose their Supreme Court judges and, by extension, their presidential candidates does not inspire any kind of confidence. Rather, it reinforces the feelings of nihilism that seem to pervade so much of our lives these days.

In the coming week, the US will have a new, highly respected and eminently qualified, associate justice of the Supreme Court of the United States while Kenya will be kept in the dark on whether the Supreme Court of the Republic of Kenya has been able to answer a simple question: what is the Basic Structure Doctrine and does it apply to the Constitution of Kenya. The High Court and Court of Appeal were able to answer this question, but it is only the Supreme Court that has the power to declare whether or not the lower courts were right. Instead of framing the question in this way, Kenyans have been encouraged to focus on two irrelevant and interrelated questions: does Kenya need the recommendations of the BBI and does the next president have an obligation to implement the BBI recommendations or not?

In my opinion, BBI (as catch all for the constitutional review issues raised for the purposes of securing the election of Raila Odinga and the continued engagement of Uhuru Kenyatta in national governance) is the wrong question. We must settle for posterity the question of the nature of our constitution’s basic structure, how it limits the procedure of constitutional amendment, and how the people are to be involved and engaged in the process of its amendment. For that question to be settle, other political and constitutional questions must be settled as well: is the president a king? Can parliament ignore its core constituencies? Can the judiciary take an activist posture in defense of the constitution’s basic structure? Instead, tragically, we are entertained by yellow-clad politicians parading themselves like TV starlets.

Katiba at Eleven

The Constitution of Kenya turned eleven years old twenty days ago. That day happened to be the day that the Court of Appeal rejected the pleas of the pro-BBI zealots and upheld the judgment of the High Court - save in the case of a few issues that didn't speak to the core of the BBI argument. The Government marked the ten-year anniversary of the Constitution but the event was marked in a muted fashion, coming as it is, when the pro-constitutional-amendment bandwagon had suffered a few setbacks, the least not being a split in the national executive regarding the fruits of The Handshake, the place of the Deputy President and the sniping from the idleness by civil society stalwarts.

It doesn't come as a surprise that the eleven-year anniversary passed without comment, whether from the government or the media. This is the last year before the next general election, which should be held on the 9th August, 2022, if Kenya isn't at war and parliament hasn't pushed back the date of the general election to 9th February, 2023 or 8th August, 2023 [see Article 102 of the Constitution].

In any case, the government was preoccupied with the BBI appeal and the national media had no interest in it - unless it was told to pay attention by the government, which seems to be the current sthatemedia relationship. I read an amazing Op-Ed by the group editorial director of the Nation Media Group, in which he tried to justify the soft-ball questions he and his fellow new editors lobbed at the president last week. While we would be excited to read a no-holds-barred bare-knuckle slug-fest interview of the president, most of us would settle for an honest accounting of the government from the head of that government. The salience of the constitutional anniversary falling on the same day as the appeal judgment should not have been given the go-bye by Mr. Mathiu and his fellow editors. And yet, it was, and we can't but wonder whether it is because news editors have fallen so low in their own estimation that writing copy for politicians and their games is what they can and intend to do.

The judiciary, also, did not care to mark the occasion and yet the BBI judgments of the High Court and the Court of Appeal were powerful affirmations of the ideals set out in the Constitution, the least not being the centrality of the people's sovereignty in the exercise of governmental powers by the president and other members of the government. The courts have awakened a powerful debate regarding what the Constitution is, what it does, whom it protects and the threats it faces from those who swore oaths to obey, preserve, protect and defend the Constitution.

Parliamentarians of all shades have proposed twenty-one separate constitutional amendment bills that have gone nowhere. Though the Bills were introduced in Parliament, they did not receive the support of the people, or the parliamentarians, for one reason or another. All proposed amendments drew strength from the utterances made by the constitution's supporters in 2010 that 80% of the draft constitution was good - and the remaining 20% could be sorted out after its promulgation. They had no intention of honouring their word; once the constitution was promulgated, they turned their attention to power-sharing and political horse-trading - the 20% that needed to be sorted out was left by the wayside. Then came along Ekuru Aukot's Punguza Mizigo Bill and the BBI Bill that wore the façade of popular support but, in truth, formed part of the desire of the political elite to exclude the people from consequential decisions that affect the lives of the people in intimate and destructive ways.

The Lancaster House constitution's guard-rails were removed with the intention of creating an imperium in the presidency and by the time section 2A was repealed in 1990, 38 amendments in total had been effected. The latest crop of 74 that formed part of the BBI Bill were a reckless Hail Mary from the political elite. They should have formed the highlight of the eleven-year celebration of the Constitution. They would have been proof that the guard-rails the Constitution has today serve a vital purpose - only truly necessary amendments that enjoy the support of the majority of the people shall be allowed t go through. Amendments designed to parcel out governmental power among buccaneers and brigands shall be fed into the woodchopper of the judiciary.

Only divorce will bring credibility

There are no perfect constitutions. That it is necessary to restate this truism comes as no surprise in Kenya's fractious constitutional debates. On a raft of issues, the Constitution, whether or not it is "implemented in full", faces challenges, some insurmountable and others not. It is therefore, perfectly in order for men and women invested in their own political survival to campaign to amend the Constitution and attempt to persuade the people that the amendments are for their own good. It is up to the people to be informed well enough to make a decision that they can live with.

If there are no perfect constitutions, then it also follows that there are no perfect constitutional orders and Kenya's is as imperfect as they come. There are those who would deny the long tail of colonialism on Kenya's constitutional order, but they are a minority that labour under the delusion that British colonialism was a net good for the peoples of Kenya. It is safe to treat them with suspicion for their constitutional motives are forever infested by hangovers over Britishisms of little constitutional value. On the other hand, it is a bit overwrought to lay all the blame for the current constitutional mess on the British; we have had two decades to settle on a constitutional order that guarantees and protects the rights of the individual; recognises the legitimate place of all genders in public affairs; holds the high and mighty accountable to the people; and forms the foundation for, as the USA declaration of independence says, the pursuit of life, liberty and happiness.

The Second Liberation inspired civil society to campaign on many constitutional reforms platforms. Many can recall the strong positions that the Law Society of Kenya, the National Council of Churches of Kenya and the Green Belt Movement, among others, took on many constitutional questions, quite often putting their members at grave risk of death or injury. The Ufungamano Initiative presaged many of the issues that would form the basis of the Bomas Conference and the work of the Ghai Commission and Nzamba Kitonga's Committee of Experts.

The Building Bridges to a United Kenya initiative - BBI - shares very little with previous constitutional reforms processes in Kenya. It isn't inspired by what the people want or need. It hasn't inspired civil society to participate in the process in ways that bring the people together on common platforms. Instead, it is the knee-jerk response of a political class that is totally divorced from the people and obsessed with the sharing of space at the feeding trough that is the National Treasury.

When we finally confirmed that the new constitutional order had not cured the political classes of their impunity - it still staggers me the number of sitting parliamentarians that were feeding at the NYS I and II troughs - we also conformed that the Ghai Commission was the last legitimate people-centred constitutional reform movement. The CoE wore the veneer of people-centrism but in truth it was a camouflage for the baser political instincts of men and women seeking high office and explains why the BBI is obsessed with the expansion of the national legislature and executive. The people will get a few crumbs thrown to them from the high table but in truth, seven-year moratoriums on HELB loans or whatever it is that forms the sops-for-the-people agenda don't mean much if taxpayers' monies go to satisfying the avarice of less than five hundred highly-paid, highly under-worked members of the political elite at the expense of the remaining fifty million Kenyans rather than regulating the national economy in a way that generates income-generating opportunities for the vast majority of young people of working age.

It isn't too late for the people to seize the moment. It will be difficult and much has changed since the halcyon days of Saba Saba. But civil society organisations like the Law Society still have an opportunity to define the arena in a people-centrered way. In my opinion, the first vital step the Law Society  - and civil society in general - can take is for its members to resign from every single public office reserved for them by Acts of Parliament or regulations made thereunder. It is impossible to criticise the eating culture in Government when you are eating as well, isn't it? The argument that direct civil society participation in public institutions is vital to holding them to account has proven to be wildly optimistic and it is time civil society and government went their separate ways. It is the only way that civil society can credibly hold the government and, by extension state and public officers, to account. If one of the BBI goals were to separate Government and civil society, I'd begin to pay attention to its plethora of self-serving proposals.

There shall be wailing and gnashing of teeth

If you are like me, and I sincerely hope that you are not, then you steer clear of Kenyan news media. Much of what passes as news and political commentary these days is barely-disguised propaganda from, in order of precedence, the president, his embattled deputy, the former prime minister or the satellites of vocal acolytes that carry water for the three principals. Every now and then, has-beens like the former vice presidents and some of the more energetic members of parliament will get a bit of airtime as will the doddery political flies made up of "civil society" windbags that swarm around the high table.

Therefore, it is almost certain that if it hadn't been for the violent rhetoric surrounding the release of the recent Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, the event would have passed me by without so much as a by-your-leave. But, sadly, I happened to come across the spirited whining of the former leader of the majority party in the senate and my spirit is disturbed.

Listening to the poor man, one gets the impression that the BBI, the catchall acronym for the implementation of the Taskforce report, is a matter of such grave national importance that presidential political ambitions shall be made and unmade on the outcome of the process. Our eponymous senator went to great lengths to highlight the crucial weaknesses in BBI (while also bitching piteously about how he and his fellow travellers had been locked out of the process). It never occurred to him to admit that the reason why there was a BBI in the first place is that he, his principals and their political party have done a great deal of constitutional sabotage that necessitates a messy political solution today.

Members of my benighted profession are taught to look at circumstances for what they are and not for what our clients wish them to be. I have witnessed one of my seniors throwing his weight behind some of the BBI report's steering committee's implementation report and, dear friend, my spirit is disturbed because if there's one thing that the BBI in its entirety is, it is that it is proof of constitutional hooliganism of epic proportions. Some may argue that the trigger for the latest round of BBI madness is the Chief Justice's advice to the president to dissolve parliament over parliament's refusal to implement the two-thirds gender rule. Some may say that after a year, give or take a pandemic or two, of the inexorable marginalisation of the deputy president and his acolytes, it is time to put him out of his misery. Still others might say that if there is a way of putting constitutional square pegs in antidemocratic round holes, the BBI is it with its proposals for statutory health commissions and constitutional police councils.

I am of a different opinion. From the moment the reds accepted, with open contempt, the outcome of the 2010 referendum, they have worked assiduously to hamstring everything the constitution stands for, from gender equity to the protection of the rights of arrested persons, fiscal rectitude to the principles of devolution. Parliamentary independence was, and continues to be, notable by its absence. Judicial independence has been the focus of determined violence that it is a wonder that just recently the Chief Justice inaugurated a new court house.

In my opinion, the BBI is a fig-leaf for something that Kenyans are afraid to come to terms wit: the political elite who speak for and about them hate the people. They hate them with a deep and abiding malevolence that is revealed in the policies and laws that are enforced, and the constitutional principles that are exsanguinated in the open, the way sacrificial lambs were exsanguinated in biblical myths. I have no faith that the successful implementation of the recommendations of the BBI Taskforce will re-acquaint Kenya's elite with the basic tenets of constitutional values. In fact, if (or when) the BBI recommendations are fully implemented, I predict that Kenyans will have great cause to regret their choices of elites. Like it is told in the Gospel according to St Matthew, there shall be wailing and gnashing of teeth.