Everybody must obey the constitution as it is, says Chief Justice

By Dr Willy Mutunga

There is an influential section of legal scholarship that has made the argument that, the crisis of governance in contemporary Africa, has been a deadly combination of bad Constitutions, often imposed and subsequently serially amended to create imperial presidencies, on the one hand, and an absence of constitutionalism – the absence of a culture to obey and respect rules, on the other.

Coupled with bad leadership, and general institutional malaise, the transition to democracy has been inchoate, dominated by reversals at every stage.

The result is a tortured population inhibited from realizing its full potential; an institutional culture of timidity, even where no threats exist; and a society and politics characterized by violence, fragility and instability.

The economic, political, and human costs have been incalculable. Hence the reason we must not be blithe and casual in our treatment of constitutional texts, once freely enacted, after years of struggle and sacrifice.

Aspirations

There is no doubt that Kenya has a very progressive Constitution. It is long not just in size but also in aspirations – an ambition of a nation codified and expressed in very clear accents.

And it was also long in coming, itself a denotation or proof of the importance of this social contract. But we will only live it if we understand it; only if we embrace it; and only if we respect it.

As leaders and citizens, these are the three simple tests we must meet in order to breathe life into this Constitution.

For those who may be tempted to bear the illusion that Constitutions are mere pieces of paper, I want to invite you to reflect on this fact:

It is not by accident that when state officers take office, whether in the executive, legislature, or judiciary, or even in other independent constitutional offices, they are required to take an oath as prescribed in the Constitution.

If it did escape your attention before, now it must not: whereas those oaths bear different refrain: ‘to protect, defend and uphold the Constitution and other laws’. The meaning of this ubiquitous line is direct: all state officers are creations of the Constitution and the law.

Its implication is plain and simple: in the words of a philosopher who was here long before us – be ye so high, the t textual forms, there is always a common law is above you.

Its political and philosophical foundations very clear: the Constitution is a social contract among citizens and once leaders are elected or appointed into office they are sworn and bound to respect this contract.

Any leader who doesn’t is unfit to be in office. Any citizen who hasn’t is failing the test of good citizenship. Strict compliance with the Constitution and the law is so important that it forms the first ground for impeachment of the president.

But this law that is above all of us, and which we must do our duty to obey, is not an imposition. It is a product of popular will and consent to be ruled by its edict.

The excitement and good spirit of this Conference today, may very easily obscure or conceal its tragic origins. These series of dialogues are an expression of institutional failure.

It is because of a failed electoral system, a failed judiciary, a failed police force, and a general failure of the state in 2007/2008 that provided the basis for this and other consultations before it.

Restoring confidence

Restoring confidence and faith in our institutions is dispensation with their tears, blood, and sweat. Lives and personal liberty were lost, friendships were strained, and families were shattered.

It is all too easy to forget these heavy prices paid by our compatriots. In short, we need to remember that the consideration for this Social Contract that is Kenya’s constitution was the highest possible price the citizens could have paid for it.

For that reason, the taking of effect of this Constitution is an achievement of a once far-off dream. Yet, my concern is that there appears not to have been a proper appreciation of the essence of this Constitution after its promulgation.

From the statements, actions, inactions and perfidy that is evident among some citizens, some authorities and persons are signals of another reversal in our democratic transition that has been the bane of most African countries is becoming evident.

Some of these actions are by default; others are by design but the category does not matter for their cumulative effect is the same. I have come to the inescapable conclusion that there are Kenyans at all levels who are yet to make the mental shift to the national and individual conduct that the Constitution heralds.

It is depressing that one year after the promulgation of the Constitution, the country falls in the corruption index, we still hear of extrajudicial killings, institutions and leaders play fast and loose with constitutional deadlines and so on.

Constitutional provisions are there to be obeyed and any public or state official who finds certain clauses administratively inconvenient must be reminded that vacation of office is a honorable option if one no longer feels capable of honoring his or her oath of office to protect, defend and uphold the Constitution.

There is discernible stone-walling by certain sections of this country to the establishment of the institutions that are required to be formed, deliberate disregard to the rights of the citizens, and utter refusal to incorporate its principles in the instruments of governance.

Choice

My response is this: living by the Constitution of Kenya is not a choice for any individual, institution, office or authority. All Kenyans must comply and live within the edicts of the Constitution.

Compliance with the Constitution is not about picking those that afford us our desired rights and ignoring our responsibilities therein. It is not an all or nothing situation. Kenya must comply with the whole Constitution all the time and in every office.

From the tiniest hut to the State House, this Constitution must apply, to the lowliest hawker no less than it will apply to the corporate titan, to the governor no less than the governed.

That is what the rule of law means. It is what equality before the law requires.

I do not underestimate the difficulty of living by this Constitution. Yet, the rule of law is not for the faint-hearted. There is not time or opportunity to implement the Constitution in half-measures.

We cannot live only with our likes and ignore your dislikes. This is particularly true in light of the fact that it may be possible that there are certain clauses that may be more appealing to us than others.

For those of us within the arms of Government, we must remember that we are under obligation to abide by the whole Constitution not individual clauses.

We must foster the realisation in all that this Constitution is for all Kenyans. That is why its destiny has been placed upon all of us. It has placed responsibilities to ensure its implementation on all.

No one is immune from the duty to uphold the Constitution. In short, we must be each other’s keeper in ensuring that the Constitution is lived to its fullest.

Therefore, living by this Constitution means that we must do what it requires to be done, when it is required it to be done whatever the cost in finance, in effort and in personal convenience.

Secondly, we must reconstitute reform and dismantle those institutions and offices it compels us to. Public participation is one of the fundamental principles in the new Constitution.

Vigilance

It runs the entire gamut of the document. Citizen vigilance is important. But the public should not merely demand of their leaders to respect the Constitution, they must also live by its edicts.

It worries me when I see daily individual transgression where citizens routinely violate the rights of other citizens. Living the Constitution is not a preserve of the ant in protecting and promoting our Constitution. Leadership; it is an obligation that reposes in the citizen as well.

In your daily conduct, in your relationship with other Kenyans, in exercising your right to choose leaders you have a responsibility in giving life to the Constitution. If you choose to elect a leader who fails the test of Chapter Six, you will be as guilty of undermining the Constitution as a leader who thinks that ignoring court orders is an act of nobility.

Choosing to support extrajudicial killings, as opposed to submitting to due process, amounts to killing the Constitution. In choosing the path of electoral violence, instead of a free, fair, and peaceful electoral process is to subvert the Constitution.

In choosing to play ethnic politics, instead of patriotic politics contributes to the killing of the Constitution. We have made a contract with ourselves; let us perform it.

The Constitution is the performance contract we have signed among us as citizens as well as between citizens and the governed. Every single day, we must ask whether we are hitting our constitutional targets in this performance contracting.

The business community must learn that it is in its long term interest to have a constitution that works, and a country that respect the rule of law. The effort it put in the referendum after years of mistaken belief that the constitution was not its business will be wasted if it does not pay attention to the implementation of the constitution.

Dr Willy Mutunga is the Chief Justice, Republic of Kenya. This is an edited version of a speech he delivered during a conference convened by Kofi Annan Foundation in Nairobi.