Will it be a zombie imperialism?

I don't know whether the seven members of the Bench the Court of Appeal shall uphold the judgment of the High Court, affirm it in part and set it aside in part, or set it aside in its entirety; Mr Musinga, JA and his colleagues are playing their cards close to their collective chest. I wish I could tell you whether the arguments of the appellants and respondents resonate with Bench, but I'm not a soothsayer. However, based on my observations of what was said by some of the lawyers gesticulating actively in court, I am minded to say something about the continued assumption that the president of Kenya continues to enjoy a strong hand as the head of state and government.

The legal issues of whether or not the constitution contains a basic structure, and that this basic structure contains unamendable clauses, and that these unamendable clauses, should they be amended, would mean the replacement of the constitution, is a matter I shall leave in the able hands of the seven appeal judges. Instead, let us consider the arguments that have been advanced regarding the place of the president in the amendment of the constitution. The appellants (the unhappy men, women and government officials asking the appeal judges to overturn the High Court judgment) insist simultaneously that the president can approach the amendment of the constitution in his capacity as head of state and government and as a private citizen - Schrödinger's cat of presidential power. The respondents (the nervous men, women and civil society groups that won a momentous victory in the High Court) continue to hold that the president can only bring about an amendment to the constitution in his capacity as the head of state and government; if he wishes to initiate a popular initiative to amend the constitution, they insist, he must resign his office and take his place with Wanjiku - but who among us believes that a Kenyan president would ever resign in order to persuade the people to amend the constitution to grant him more power?

The implications of whether or not the president can participate in the amendment of the constitution in his official or private capacities are the reasons for much hand-wringing among the lawyers representing the appellants because they, in my opinion, suffer vestigial warm feelings for the concept of the president as having the widest freehand to act as he pleases as can be imagined - in short, an imperial presidency. They pine for the presidential imperialism that was engendered and entrenched by the former constitution. For those of us who can remember, the way in which the repeal of section 2A of the former constitution was initiated was by the president, at a political rally in a national stadium, turning to his attorney general and ordering him to bring a Bill for the repeal of section 2A to the National Assembly.

The now-ever-present Wanjiku was not, and had hitherto never been, afforded the courtesy of being consulted. As the president would sarcastically ask seven years later, "What does Wanjiku know about constitution-making?" it is clear that it had never occurred to the men and women cheering Mr Moi and Mr Wako on that fateful day to actually ask the citizens if the restoration of multi-partyism was a good thing or not. Things have evolved considerably since then. Beginning with the Constitution of Kenya Review Commission Act of 1997, the president's free hand has consistently been statutorily constrained, culminating with the explicit declaration in the Constitution of Kenya promulgated 11 years ago: sovereign power belongs to Wanjiku. The president is no longer the sovereign - or a sovereign for that matter. He does not wield sovereign power. He only exercises the power that Wanjiku donates to him - and no more. What the High Court did on that fateful day was to state what the words of Article 1 (1) actually mean. The awful (for the president and the pro-imperial-president cheering squad) consequence of that judgment is that what Mr Moi did in 1990 cannot be done by any of his successors, no matter how compelling a reason they fashion for it. The president can no longer order his government to amend the constitution willy-nilly - he must suffer the approval or rejection of the people.

At the end of the day, when the appellate judges read their judgment, they will be answering a simple question: is the imperial presidency dead and buried or does it still possess vestigial signs of life? The answer has serious implications. It might mean the setting aside of large swathes of constitutional obligations revolving around the participation of the people in determining their constitutional fates. The answer will also reveal who among us plays the mouse to the president's cat when it comes to protecting the values and principles of the constitution - and the rights and fundamental freedoms of Wanjiku.

If we are lucky

There are few of us who are truly privileged to have almost all, if not all, of our needs - and desires - catered for. More often than not, we always want for something - something that is just out of our reach, its scent wafting into our nostrils, enflaming our passions and, when we are careless, driving us mad with desire. It is, therefore, a test of our forbearance that for the most part, we keep our passionate desires at bay, denying ourselves the freedom that comes with the pursuit unrestrained hedonism. We learn, even when the spigots of the national treasury are thrown wide open, to temper how we enjoy the gifts that we receive.

This is not the case with those who have learnt nothing of the fatalities arising out of gluttony. Their baser instincts are so used to being satiated at the snap of their fingers that when the boom falls, the devastation it leaves behind is truly pitiable. The catastrophe is much worse when it befalls the men and women charged to govern the country. If you haven't been paying attention, in the past week, the High Court has lowered a devastating boom on the men and women top the edifice we call government. The High Court has denied them that which their political hearts desire above all else: the supine acquiescence of their subjects. The proof of the devastation is in the confused and frenzied pillar-to-post flitting by their acolytes as they attempt to set back the clock to the days when the presidential snap of the fingers led to the dismissal of bad judges.

I am most amused by the spectral whispering by their disciples in the so-called free press: editors and political journalists have spent the past week prophesying deadly outcomes if the judgment is allowed to stand. They have also amplified the voices of clever, though shortsighted, members of the Kenyan Bar who continue to make increasingly shrill observations about constitutional crises that only they can see. Few of these highly motivated sirens have bothered to take a step back and ask whether or not their sense of entitlement - theirs and those of their patrons - were ever meant to be satisfied in the first place.

The merits, or otherwise, of the appeal are neither here nor there. The highly paid legal eagles for each side of the argument will plead their case before senior judges and the best argument - or the best political argument - will prevail and the show will move on to the Supreme Court. But the question as to whether the unhappy, super-entitled men and women who disagree with the uppity-ness of the lower classes should continue to be indulged remains unanswered. The temerity with which the judges of the High Court have recklessly refused to indulge the self-centred and entitled whims of the Kenyan aristocracy has been received with shock and everything the aristocracy's loyal footsoldiers have done has represented the rage that pervades that aristocracy's psyche and salons. If the judgment is not reversed, it may very well lead to a class psychosis that shall be terrible to behold - or experience.

Kenya is yet to reckon with the existence of its aristocracy represented by its members in the political executive, the legislatures, the judiciary, business and academia and the institutions of religion that continue to offer spiritual and social solace to the lower classes. The judgment, in my opinion, is the first serious attempt to push back at the demands of the self-entitled classes. It builds on the tentative steps taken by the Chief Justice in 2017 and 2020 - the vitiating of a presidential election and the demand that parliament should be dissolved for subverting the will of the people - and, if we are lucky, the judgment might inspire us to put our foot down against the demands of the ministers of faith and the avarice of the business classes. If we are lucky.