WHY ISNT ANY PRESIDENTIAL CANDIDATE CONVERSING ON PROTECTION OF THE RULE OF LAW?
By: Odhiambo Jerameel Kevins Owuor
Worth Noting:
- The Constitution of Kenya was meant to correct the wrongs of the past regime where the President could meddle with the Constitution as he could wish.
- Thus the provisions that all the actions of those in power must conform with the Constitution failure to which such acts fall under the three nice words null, void and illegal. President Uhuru Kenyatta has in the past refused to swear six judges who were forwarded to him by the Judicial Service Commission, refused to adhere to a ruling which declared that the Chief Administrative Secretary position is unconstitutional, he has disregarded numerous court orders, stifled the judiciary, initiated Nairobi Metropolitan Services which is against the spirit of the Constitution.
President Uhuru Kenyatta will go down in history books as the first president under the new Constitutional dispensation. As well needless to say, he will as well make it to the history books for being constitutional delinquent. That statement is courtesy of an array of things that he has done while in power. If my mind serves me well the President did make an oath during his swearing in. This was his oath: ‘ I Uhuru Kenyatta swear/solemnly affirm that I will truly and diligently serve the people and the Republic of Kenya in the office of the President/ Acting President of the Republic of Kenya; that I will diligently discharge my duties and perform my functions in the Office of President of the Republic of Kenya; and I will do justice to all in accordance with this Constitution, as by law established and the laws of Kenya, without fear, favour, affection or ill-will. So help me God.’
Has the President demonstrated fidelity to the rule since the genesis of his era? I am persuaded that the man who lives on the hill hasn’t been faithful and has been looking for all reasons to employ situational ethics in applying the law. One might think it is because he has bad advisors or he has just made a deliberate to overlook the law and do what he thinks is the law according to his own eyes which is not in harmony with the Constitution.
Rule of law on the face value refers to the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power.
The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. One can be right to argue that Constitution enumerates more on the rule of law.
The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.
The Constitution of Kenya was meant to correct the wrongs of the past regime where the President could meddle with the Constitution as he could wish. Thus the provisions that all the actions of those in power must conform with the Constitution failure to which such acts fall under the three nice words null, void and illegal.
President Uhuru Kenyatta has in the past refused to swear six judges who were forwarded to him by the Judicial Service Commission, refused to adhere to a ruling which declared that the Chief Administrative Secretary position is unconstitutional, he has disregarded numerous court orders, stifled the judiciary, initiated Nairobi Metropolitan Services which is against the spirit of the Constitution.
Not to forget the move the President made via his executive orders to put independent constitutional bodies under the Executive branches. The Jubilee regime did also refuse to obey the court orders in Canadian based lawyer Miguna Miguna saga. This shows the correct picture of a regime that has made court orders and other relevant laws of the land as mere opinions without the force of law.
From the above illustrations this informs my observation that the next President should be one who adheres to the law not only when it pleases him but also when it displeases me for that is the law of the land. Application of situational ethics by the current government has led to a number of ramifications to the country.
Legal scholars have nothing meaningful to state about this Uhuruto government courtesy of their misdoings while in power. The people have bestowed the power to the various elected leaders that is in accordance to the Grundnorm and the elected leaders are supposed to act in the best interest of the people and in so doing adhere to the Constitution. Such that all their actions must be sieved by the Constitution and only those which pass the sieve are adhered to.
I am surprised that none of the Presidential candidates so far has been able to state publicly that he will adhere and protect the rule of law by all means. All they are saying in their campaign trails is economy I dare say, without the rule of law at check that economy they are purporting remains to be a wild dream. The rule of law forms a perfect bedrock or foundation of all other things that as a people we can enjoy as a people. This is my message to the presidential candidate kindly spare time during your campaigns and talk to us on how you plan to make sure that the rule of law stands the test of time. Thank you.
Odhiambo Jerameel Kevins Owuor is a law student at University of Nairobi, Parklands Campus. He regularly comments on social, contemporary, political and legal issues.
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