Seeking the Spirit of Law

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.