The Church and Judiciary played a crucial role fighting for a new order

The struggle for a new Constitution was long and arduous. And in recognition of those who lost lives and limbs some of whom are immortalised in the Freedom Corner, to many known and unknown, including the clergy of conscience: Bishop Henry Okullu, Bishop David Gitari, Bishop Alexander Muge, Reverend Timothy Njoya; we must bow in honour.

The sacrifices these and many other Kenyans made were immense, and as we implement the Constitution, we must always be alive to these contributions. The fight for a new Constitution continues beyond its promulgation. The task of living the letter and spirit of the new Constitution is yet another phase of that struggle that all Kenyans and all institutions must play a key role in.

It is part of the reason that I invited some of our judges from our two Divisions who have been at the forefront in interpreting the Constitution to be here today. This is partly a celebration of the excellent work they have done in upholding the Constitution in the face of tremendous attack and confusion, and partly a reminder to all of us that the Constitution we interpret has a history and purpose in the lives of the Kenyan people.

KING-SIZED ROLE

The mainstream Church in general and the Anglican Church in particular, together with the Law Society of Kenya, played a king-sized role in the opening of the democratic space in the 1990s that paved the way for a new Constitution.

It is in these grounds that the late Archbishop Gitari gave his prophetic Mene Mene Tekel Sermon predicated on the Book of Daniel 5 and predicting the end of the dictatorial Kanu regime. It was in this Church where the Rev Njoya, alongside Kepta Ombati, were attacked and brutalized by Kanu thugs as they fought for reforms.

It was in this Church, as we faced a divisive referendum five years ago, that the courageous Archbishop David Gitari who stood for the No Campaign and gave a full-throated support to the Constitution.

And this is where the lessons of the first silence of scripture comes in, and that is, even as we celebrate the new Constitution, the Church must examine its role in this struggle in the immediate past and going into the future.

Even as the Church played a big role inducting political pluralism, its role was inelegant in the two constitutional referenda in 2005 and 2010. It preyed and played on unfounded fears to rally against the Constitution. It argued that the Constitution would lead to an upsurge in abortions. To the best of my knowledge, there hasn’t been an outbreak of abortion since we promulgated the Constitution five years ago.

The church argued that we were introducing Sharia Law, and that Islam would take over simply because we retained Kadhis courts in the Constitution. I have not heard of sharia law imposition in Kenya. So we must accept that we can be wrong sometimes and that we can do better.

SETTLED MANY ISSUES

This Constitution has been a boon for Kenyans. Without it, we wouldn’t have had a peaceful election litigated all the way to the Supreme Court; without it, we would not be undertaking the Judiciary transformation that has revived people’s faith in the rule of law; without it, we would not have had devolution that has opened up parts of this country previously unfairly condemned as low-potential – and we can all see the folly of that ‘wisdom’; without it, we would not be enjoying the freedoms we see.

It is not perfect, but it contributes to the perfection of our nationhood and social contract and we must support it. The Judiciary has settled many issues in law on elections, Bill of Rights, women and gender rights, devolution, land, family law, labour rights and we will continue to do so.

The Church leadership must recover from its Jonah moment, and head to Nineveh where its congregation preceded it. It may have capsized when about to reach the shores of change, especially after putting in so much into the struggle. But so did Moses. Just like Moses who never reached Canaan, the Church’s leadership may not have crossed the constitutional Rubicon but must still help take this country into the constitutional heaven.

It must rise up and re-occupy the civic space it has occupied with tremendous success in the decades past. The business of protecting and living this Constitution is too serious to reduce the Church into a spectator simply because of wounds incurred five or 10 years ago. And to paraphrase Peter in Acts of the Apostles 3:6 after healing the crippled beggar, ‘Church, arise and walk, for a new Constitution we do now have and the nation does need you’.

Church, arise and walk for God is a God of second chance – so are the people of Kenya.

Dr Mutunga is the Chief Justice and President of the Supreme Court of Kenya.