July 18, 2011 Mad Hatter


Article 259 (11) of the constitution of Kenya is significantly prominent in the constitution in a way. The article reads: if a function or power conferred on a person under this constitution is exercisable by the person only on the advice of or recommendation, with the approval or consent of, or on consultation with, another person, that advice, recommendation, with the approval r consent, or after consultation, except to the extent that this constitution provides otherwise.

Read without much consideration, it would pass just like any other legal provision in the constitution. However, probably it is one article that captures one of the real reasons for the clamor of the new constitution. It strikes a blow to imperialism and emphasizes that if there is such a provision as requiring any another opinion, it is not just for the sake of it, it is constitutional.

The article gained prominence, when President Kibaki usurped the law and purported to nominate persons to the offices of the Attorney, DPP and chief justice by passing the judicial service commission and the Prime minister.

Rekindling the debate would serve no purpose as the law was later duly followed. However, it would be remembered that at the height of the debate, a respected legal mind saw it fit to justify the president’s action on a relatively unimaginable premise. To them, on a national TV, the saw that it was not mandatory for the president to consult the prime minister as the article read …. The function MAY be performed or the power exercised only on… to him, the use of MAY, rather than MUST, absolved the president of any obligation to be tried to any tedious consultations, advices or no forthcoming consents.

Such an opinion amounted to a legitimization of imperialism, the very ghost that the republic was trying to run away from with the new dispensation. Worse still, since the contention was in regard of consultation, necessitated by the National accord, the assertion amounted to reducing the murderous spree and rapes that rocked the republic during the 2008 post poll mayhem into a linguistic battle between MAY and MUST.

This is a single instance where custodians of legality discard the collective aspirations of the nation to succor narrow sectarian views.

A most recent development is the fracas around article 27 (8) read in part… state shall take legislative and other measures, to implement the principle that not more than two thirds of the members elective or appointive bodies shall be of the same gender.

This has seen the halting of the Supreme Court swearing in by a section of the civil society, sadly, FIDA inclusive. They accuse the Judicial Service Commission of usurping the constitution by deviating from the constitutional threshold of at least a third of either gender in all institutions.

I truly believe that this could be misplaced enthusiasm. Basing on the reality before us, the deviation could be absolved as a sensible compromise for the sake of progress.

Apart from the constitution guiding that such is an aspiration of the country; in the moment we lack any legislative piece that could guide such a phenomenal shift. Clearly the article (27) does not appear in the fifth schedule Article 261 (1) and this cannot be accidental.

The unspecific timing in the aspired legislation allows the country to utmost 5 years for its enactment or without unreasonable delay.

To realize this aspiration, the constitution recognizes the need for both legislation and OTHER MEASURES to support legislation. Gender parity in Kenya is not a legal creation; it is a socio-cultural phenomenon. And it is imperative that we deal with the cultural biases that lead to it rather than advocating for cosmetic and impulsive solutions.

As such, the Supreme Court is just but the higher organ of the institution judiciary that is established by the chapter ten of the Constitution. The merit of this case would lie, in if, after the complete restructure, the entire judiciary does not meet the criterion, or say, in all the courts termed as superior by the constitution.

Halting the being of the Supreme Court is holding at ransom the entire nation for the sake of an ideology that is right but not justifiable by reality. The halting is impeding the dispensation in a host of ways. There are crucial bills that would require constitutional referencing on the constitutionality of key issues. One such is the land bill that the minister is seeking the Supreme Courts guidance on key provisions. Well, one could argue that the high court has a constitutional mandate, but with the backlog that the judiciary is reeling under, it would be prudence of perception to realize that the expansion is an exigency.

Secondly, the entire argument would either create or sustain an illegality in a way. If one male person has to be dropped, then that would amount to a contravention of Article 27 (4) that outlaws discrimination on the basis of sex. On the other hand it sustains an illegality in that we continue having a situation where all appellate judges are male. I guess it is a tale of choosing between the lesser evil. If the high courts terms a nullity the entire exercise, remotely, there is a taste of gender based discrimination and inordinate expense in matter of resource and time.

The other glaring truth is that as a nation we have a phlegmatic list of priorities. On this list, we have gender mainstreaming being as critical as all other priorities but clearly not a matter of life and death. The very fact that the deputy president of the Kenya’s Supreme Court will be female is an indication that the spirit of the new dispensation was central to the procedure. It is a laudable deviation from the chauvinistic appellate courts we have all along been accustomed to.

There is an urgent need that the Supreme Court as proposed by the JSC be endorsed as a repeat could see the influence of the status quo as it unfortunately with the appointment of the DPP. The custodians of legality in this country risk establishing themselves as impediments to the dispensation if they continue to idolize technicalities. To nurture this delicate dispensation, we have no option but to incorporate sensible compromise for collective progress. This is not complacency, vigilance is an obligation, but outrunning ourselves has no significance either.

The hefty legislative burden on the legislature will need a keen legal eye to suppress endorsement of laws that do not satisfy constitutional aspirations. This would pass for an ideal channel of enthusiasm. Or rather can we make the Government printer understand that we are in a new dispensation?

Central in our construing of the supreme law, there should we should have the reality of our Kenyan dream a country where democratic tenets are supreme, and the rule of law rather than rule by law exists.

TO ACHIEVE THIS, WE NEED AMBITION, VIGILANCE AND PERSISTENCE, BUT CLEARLY NOT SIDESHOWS To achieve this, we must remain realistically ambitious and true to our reality.

Leave a Reply