Cord is undermining the Constitution

From left: Cord leaders Eseli Simiyu, Kalonzo Musyoka, Moses Wetang'ula and James Orengo at a press conference at Capitol Hill in Nairobi on June 10, 2016 on the progress of dialogue with the government on the Independent Electoral and Boundaries Commission. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Cord has no legal basis to appropriate the sovereign power of the people under the guise of pursuing its political agenda against the Independent Electoral and Boundaries Commission.

Democratic nations are governed by a constitution that clearly spells out the powers and functions of the organs of the State and their relationship to each other. The State derives its authority from the sovereign power of the people.

Article 1 of our Constitution explicitly vests all sovereign power in the people of Kenya to be exercised directly or indirectly through their democratically elected representatives. It goes ahead to delegate this sovereign power to the three organs of State, namely, the Executive, Legislature and Judiciary at national and county levels.

Although Article 1 envisages direct exercise of this sovereign power by the people, they collectively delegate it to their democratically elected representatives for legal and administrative convenience and to allow just and orderly management of their affairs.

As the great American statesman Thomas Jefferson wrote: “The whole body of the nation is the sovereign legislative, judiciary and executive power for itself. The inconvenience of meeting to exercise these powers in person, and their ineptitude to exercise them, induce them to appoint special organs to declare their legislative will, to judge and to execute it”.

By implication, although the people elect their representatives through political parties, the Constitution does not confer on them (parties) - no matter how popular - the mandate to directly exercise the sovereign power of the people. Any attempt by a political party to usurp this power is unconstitutional.

The acrimonious debate and violent protests surrounding the opposition Cord’s demands for the ouster of the Independent Electoral and Boundaries Commission (IEBC) should, therefore, be carefully interrogated within this context. Neither Jubilee nor Cord or any other political party can appropriate the sovereign power of the people. Indeed, political parties come and go but the State remains.

Cord has, in pushing for the ouster of the IEBC, invoked this sovereign power claiming that it is acting on behalf of the people. While this argument may be politically expedient and popular it is not legally tenable. Cord cannot usurp the sovereign power of the people in pursuing what is evidently a partisan grievance against the IEBC.

I need not belabour that Article 251 provides a legal mechanism for removing the commissioners on certain clearly stipulated grounds.

Article 249 also provides that the independent commissions like the IEBC and holders of independent offices – auditor-general and controller of budget – shall not be subject to direction or control by any person or authority.

The reason the drafters of the Constitution included these provisions was so as to insulate independent commissions from unnecessary political interference and arbitrary removal of members as this would not only undermine their proper functioning but also their constitutional mandate.

It is understandable that owing to the fact that the Constitution entrenches their independence, such institutions may sometimes make unpopular though legal and bona fide decisions that may annoy certain individuals or groups in the society. The IEBC is no exception.

It is true that Cord has elected representatives, but Parliament exercises the sovereign legislative power of the people collectively.

In rejecting calls to have the IEBC matter resolved in Parliament, Cord is undermining the Constitution.

I am not saying that Cord and its supporters have no right to protest, picket or otherwise legitimately voice their grievances against the IEBC.

But Cord as an alliance of political parties has no legal basis to appropriate the sovereign power of the people under the guise of pursuing its political agenda against the IEBC.

To do so would be to undermine the Constitution that Kenyans fought so hard for in the hope that justice, law and order will prevail.

Mr Choto is a political commentator; [email protected].