Assault on the rule of law by those in power means autocracy is back

Constitutional law scholars and students continue to analyse the perilous manner in which the Executive and Legislature have assaulted the rule of law and separation of powers thereby greatly undermining the Constitution.

Both Jubilee and Kenya Kwanza governments since 2013 have dented the Constitution with the latter’s assault reaching alarming levels. The constitutional requirement for genuine and comprehensive public participation in serious decisions and legislation has been whitewashed, choreographed and stage-managed.

Since the 2005 failed referendum on the draft constitution, Kenya witnessed exponential growth and heightening of divisive politics, entrenched impunity, and negative ethnicity carried through to date. The 2007 elections and the post-election violence exposed the fragility of our democracy and underscored the necessity for the rule of law and rules-based and accountable politics. This violence and the aftermath of political crises triggered the promulgation of the 2010 Constitution, even though its letter and spirit are yet to find traction in the current government. The two governments under the new Constitution have treacherously trifled the Constitution and reenacted the political culture of persons seeking to preserve the old order and self-seeking political interests.  

The Constitution in Article 10 provides for national values and principles to be applied each time we interpret and apply them, but the leadership has failed to embrace and submit to them and to constitutionalism, “a morally binding fidelity to the rule of law – to infuse trust in the society and confidence in state institutions,” choosing instead to personalise, trivialise and tumbonise political leadership, according to social media. The social media is replete with claims of MPs “confessing” to being “bribed/corrupted” to support motions and to do their constitutionally mandated work! If this were true then it would mean MPs are paid twice to do their work but worse, the source of the colossal sums of money used to “bribe” them could be public funds, which we cannot afford.

The National Treasury tells us we do not have funds to properly roll out SHIF/SHA, why did we abandon a functioning NHIF by the way? It was not perfect, but it was working for majority of Kenyans and its shortcomings could have been solved without replacing it with a more expensive and probably unsustainable system.

Treasury also says we do not have funds for government development agenda and to carry its primary functions, yet we engage in activities and initiatives that do not support national priorities for majority of Kenyans. It is perilous for government to have too many balls in the air and too few people minding them. Since the Gen Zs protests we continue to witness endemic impunity with rogue police, politicians and tender-preneurs getting away unsanctioned. Rumours of Kenyan ports and State holdings being auctioned, return of grand corruption, abductions, extra-judicial disappearances and killings, merciless crushing of dissent and critics, increased malfeasance, cronyism, nepotism, ethnic biases, tribalism, which defy meritocracy and our diversity are very concerning.

The trampling on the Bill of Rights and the stifling of the doctrine of separation of powers are rolling back constitutional and democratic gains. The number of laws and parliamentary decisions declared unconstitutional by courts could bespeak of either of their being compromised or inability to enact sound laws and make decisions motivated by public interests, good and for posterity.

Similarly, a situation witnessed during the one-party dictatorship when Parliament was a rubber stamp of Executive decisions. Further entrenching impunity, disregarding the rule of law, increasing state violence and tribal acrimony and biases seriously threaten our constitutional order, integrity and constitutionalism.

We must defend the Constitution and the rule of law and to support their defenders. The price for freedom and the rule of law is eternal vigilance by all. We must scrutinise and hold accountable those to whom we have delegated our sovereign power under the Constitution, all the time, lest autocracy is recreated through decentralising of Executive power.