Dear Senators, the Constitution is not a suicide pact

By Apollo Mboya

Kenya: A constitutional confrontation is looming between the Senate and the Embu County Assembly on the one hand and the High Court on the other. The High Court will inevitably be considering whether the senators failed to comply with the court’s order not to debate the impeachment of Governor Martin Wambora.

Ask any person who believes in constitutionalism and the rule of law and they will confirm to you that an open defiance of court orders is a recipe for chaos.

The Senate had argued that in the spirit of separation powers, it was justified to disobey the court order and collectively in a pact proceeded to commence impeachment proceedings. The lack of respect for the Judiciary, which is supposed to administer and interpret the law, should worry all those who believe in the rule of law.

The choice is not between order and rule of law. It is between the rule of law, order and anarchy without either.  On August 27, 2010, we gave ourselves and to our future generations a Constitution. In the preambular paragraph, we recognised the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.

The Constitution is not just a piece of paper.  It is a sacred, solemn pledge that we made to ourselves.  It is everything our nation has ever been and was designed to be.  Without it, we fail, both as a country and as an idea. It is to be hoped that the normal balance of Executive, Legislative and Judicial authority may be wholly equal and adequate to meet the unprecedented task before us.

The Constitution does not envisage any unprecedented demand and/or need for temporary departure from that normal balance, apart from in the manner and procedure provided therein. The constitutional theory of separation of powers and restrictions imposed by the checks and balances between the arms of government has not bestowed upon the Senate or the Executive the right to disobey court orders.

We knew there would be challenges to be addressed after embarking on the implementation of the Constitution. Among these issues include the gaps in the devolution framework. The impeachment of the Embu governor has brought to fore some of the glaring gaps, including the threshold required to remove an elected top official of the county, whether the governor and the deputy can be impeached at the same time and if so, who then takes over.

Another issue is how a deputy governor is to be appointed in case the previous occupant ascends to the helm as the new governor. Finally on this discourse, is whether the views of the electorate who voted for the Governor really matter.

The action by the Senate demonstrated that impeachment of a Governor can cause an imbalance which, if not addressed, can be a threat to devolution. In the case of Embu County, political leaders complained that there was an agreed arrangement between the communities of the county on sharing of positions.

This is a key dilemma as we struggle to maintain the constitutional equilibrium in an era of intense friction between the various organs of the State and growing threats to the rule of law. We cannot afford to lose our country to a disobedient Legislature flouting the law and court orders, because this would be tantamount to losing the law itself, with life, liberty, property and all accompaniments; thus absurdly sacrificing the ends to the means.

There is a real danger that, if Senators and MPs do not temper their doctrinaire logic with a little practical wisdom, they will convert the doctrine of separation of powers into a suicide pact, which may lead them into a conflict they cannot win against the Judiciary. The State with its organs must resolve such problems with ‘pragmatism’ if the Constitution or any other law lacks a solution.

The courts therefore, must adopt intrusive actions to secure the State against real threats emanating from the actions of the Legislature and the Executive. At any given moment in history, the outcome of a decision may seem to be compelled by a little practical wisdom; meaning that we first must protect ourselves from what seems the most threatening.

The courts must therefore trade off constitutional provisions with the rule of law. If adherence to the principle of separation of powers leads to the erosion of the rule of law, the courts must yield and favour the latter.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke