When we overwhelmingly passed the new constitution in
2010, we were hailed as one of the most progressive societies in the world. We
expected it to change our fortunes for the better. Today, however, barely seven
years after its promulgation, the constitution has not met most of our
expectations.
After flashing back to how President Kibaki did
wonders with the same constitution that President Moi used to oppress us, I
have come to realise that maybe there is something more to a law than just the
words used to define it. We saw a government working what appeared to be
miracles in Kibaki’s first five years than we had seen for decades before. And
this was through the same laws that had been in force before he came into
power.
The Purpose
of Law
A law is intended to be a guide for people to know what
to do in different circumstances while ensuring they do not lose perspective of
their society’s objectives and aspirations. An ideal law should therefore
ensure that different aspects of the direction that a people want to take are effectively
captured. In a democracy, the law is supposed to ensure that the power of the
people is not usurped either by a small section (read leadership) of the same
people, or delegated to outsiders (read foreign masters). The law must protect the
people’s sovereignty.
Unlawful Law
Keeping
The government has three arms namely the Legislature
(Parliament), Judiciary (Courts), and Executive. The legislature, in which
every citizen is represented through a member of parliament in the national
assembly and a senator in the senate, makes laws (that’s why they are referred
to as Lawmakers). The Judiciary is responsible for interpreting the law while
the executive is responsible for implementing the law. Each of these arms of
government is intended to be independent of each other, only that this is not
always the case. There has been a lot cross-interference between the arms of
government leading to situations of ‘’unlawful law-keeping”.
Dependant
Independence
The only word more misused than ‘Independence’ in
Kenya is ‘Love’. We attained our independence from Britain more than fifty
years ago. However, we run to them with every small problem. We are like the
kid who moves out of the parents’ house but has to run to them for rent, food,
and general upkeep. We have bodies that are intended to be so independent that
they even have the word ‘independent’ in their titles but they cannot exercise
that independence even if the lives of their employees depended on it. They are
dependent on the same people they are supposed to exercise independent
authority over.
Change for
the Sake of Change
We have been unable to obey our own law which we wrote
ourselves. We now want to change that law to match with what we have been
doing. Election laws have already been changed. There are talks of changing the
borders of our country so that those who don’t like each other can belong to
different countries and not be forced by law to live together in harmony.
People at the coast want to be on their own because our ‘wonderful’ and ‘progressive’
law has not managed to make them feel ‘Kenyan’ like the rest of us. We all want
change – not to be better, just to be different. Our new words in Kenyan
vocabulary are ‘secession’ and ‘self-determination’.
Appeasement
of the Disgruntled
None other than the National Council of Churches in
Kenya (NCCK) through their ‘white-whiskered’ cool, calm, and collected General
Secretary, Reverend Canon Peter Karanja, have made calls for a change in our
amazing new constitution to create the office of official opposition, as well
as a Prime Minister and two deputies as consolation prizes for election losers.
This, they claim, is ‘for the sake of peace’.
Understanding
the Law
There are two aspects to every law. One is the word of
the law represented by the words used to describe it. The second is the spirit
of that law which is the actual intention of why the law was written in the
first place. If the spirit of the law is not felt by those who the law is supposed
to govern, then changing the words will not achieve much besides generating
frustrations. I say, let’s seek the spirit of our laws before changing a single
word – Gospel according to the Layman.