We have just celebrated the 14 anniversary of our 2010 constitution, without doubt one of the greatest. The gains of this social contract between the people of Kenya and the holders of the reins of state power are immeasurable.
Apart from the usual checks and balances in democratic governance, our constitution vests sovereignty in citizens, giving them the right to intervene at every stage as they desire.
The constitution in the preamble sets out the purpose of the state, which is to serve and protect the best interests of the people. We the people are the owners of the state and all sovereign power belongs to us collectively. This power is delegated, by the people, to the three arms of government namely, the Executive, Legislature, and Judiciary, as well as to all state institutions and officials. It must not only be exercised in strict adherence to the constitution, but also for the benefit and in the best interests of the people.
Moreover, this delegation of authority does not mean that the people relinquish all control. They retain residual power, which can be exercised directly, bypassing the delegated organs such as the Executive or the Legislature as and when they deem fit. This direct exercise of sovereignty by the people is precisely what prompted the Executive to withdraw the Finance Act 2024, and to sack nearly all members of the Cabinet. These unprecedented actions were acknowledgments of the people’s sovereignty or People Power. Proof that the government is but a trustee of the people's power.
To be clear, the state does not exist for the interests of the ruling elite or state officers, but for the benefit of the people.
Of course, the ruling class too is part of the people, hired by the people, to run the affairs of the state on their behalf. They hold the reins of power as trustees who must always act in the best interest of the people and in strict adherence to the constitution and the laws under it.
They should and must be painfully aware at all times that the stewardship of the affairs of the state can be withdrawn by the people at any time, in the very same manner, individuals or corporations fire employees. This is the constitutionally vested power of recall.
The recall of elected and appointed officials can be exercised both through institutions like the Judiciary and the Independent Electoral and Boundaries Commission (IEBC), or directly by the people.
How can this direct recall be manifested? Some may have asked the same question before witnessing the recent Gen Z protests.
How did President Ruto determine that majority of Kenyans wanted the complete withdrawal of the Finance Act 2024 or the dismissal of the Cabinet? It was a moment of people power in action. There is always a moment when the voice of the people becomes unmistakably emphatic.
Leaders of integrity would without hesitation, give way to the wishes of the people, who are their employers, when it becomes clear that the people no longer desire their services.
Failure to do so is itself a disregard of the sovereignty of the people and therefore, a violation of Chapter Six on eadership and integrity.
The unleashing of brute force to suppress the exercise of the right to protest cannot be justified in a democratic society. Such actions signal the abandonment of the rule of law and respect for human rights, a tilt towards authoritarianism and anarchy.
To be elected is to be hired by the people, who reserve unto themselves the right to fire. Elected positions must never be equated to a title deed where one acquires ownership. These are positions of privilege held at the pleasure of the employer - the people of Kenya.
The use of excessive force by the police which resulted in death and grievous injury violates the foundational principles of adherence to the rule of law and respect for human rights. The arbitrary arrests, abductions and or enforced disappearances, similarly violate the foundational principles of adherence to the rule of law, respect for human rights and dignity.
The unjustified use of excessive force by the police demonstrated the urgent need for the police service to familiarize themselves with the constitution, and especially to internalize that the people are their employer to whom they owe loyalty.
Further, that the constitution is their operations manual, which must be strictly adhered to, and that respect for the rule of law, human rights and human dignity, is mandatory not optional.
The disturbing videos of police brutalising people ought to be enough to make the Kenya National Commission on Human Rights and the National Police Commission not only recommend prosecutions but also embark on an overhaul of the curriculum of police training and the code of regulations to ensure that they reflect our foundational principles.
We need as a Nation to have an open discussion on, our rights and duties under the constitution, as well as the relationship between citizens and the ruling elite.
We need to understand that this relationship is defined by the constitution which is our social contract. In order to inculcate constitutionalism, foundational values and principles must be included in the school curriculum.
In conclusion, Kenya has a great constitution but clearly lacks a culture of constitutionalism. There is a glaring disconnect between the constitution on the one hand, and the conduct of the ruling elite as well as public officials.
Holding those who violate the constitution to account will contribute greatly to the culture of constitutionalism. The GenZ protests marked a welcome shift towards this direction.
The price of freedom and democracy is eternal vigilance. Let us all in one accord rise up to this duty individually and collectively. We owe it to ourselves and to our home, Kenya.
The writer is Party Leader, Narc Kenya, and former Minister for Justice and Constitutional Affairs
