In 2010, there was a wedding, and Parliament was the groom
What you need to know:
- Women dress to kill, with amazing elegance and grace. They all look like princesses who just popped out of a fairy-tale.
- There is a sharp contrast between them and men. Men dress not to be killed – the shabbier the better. A tight t-shirt, overused sport shoes, that velvet worn-out, tattered shirt that has tested uncountable matatu seats…what a contrast!
- The courts do not legislate. They simply declare, and their declaration should be aligned to Article 2 of the Constitution.
Weddings are a very powerful barometer of society. How people dress, how they behave, how old and new customs merge, and how much people laugh or cry, send a powerful message about society.
In some countries, there is little difference between weddings and funerals. In some places, weddings are devoid of laughter, enjoyment and glamour, and people hardly smile. One even wonders if it is a marriage or a divorce. All seems sombre and flat, like the wake of a funeral.
In other places, funerals are so exhilarating, jolly and musical that you feel you are dancing with the deceased, who is surely moving to the rhythm of the music inside the casket. One wonders if the deceased has just gotten married.
Last week, I was invited to one of those very well organised, enjoyable and cheerful weddings. The venue, the food and the company were well accompanied by a merry, pleasant and well thought-out nuptial ceremony.
At this wedding, I observed what has become a common trend in Kenyan weddings. Women dress to kill, with amazing elegance and grace. They all look like princesses who just popped out of a fairy-tale.
There is a sharp contrast between them and men. Men dress not to be killed – the shabbier the better. A tight t-shirt, overused sport shoes, that velvet worn-out, tattered shirt that has tested uncountable matatu seats…what a contrast!
It’s as if men did not want to be wedded, but just weeded, out of any obligation. While women look forward to commitment and motherhood, men look forward to freedom and let-me-live.
This attitude is a reflection of some of our institutions. The promulgation of our Constitution in August 2010 was our wedding with the rule of law.
Kenya, a beautiful woman, was dressed to kill. Parliament, the man in the story, was reluctantly present, and when the bachelor’s bouquet was thrown into the air the House quickly scattered, frightened of commitment.
TANTRUMS OF PARLIAMENT
Our Parliament is composed of many talented people, many real patriots. But there is something, which I find difficult to pinpoint, that makes them fall into a true mob mentality every now and then.
Parliament easily contradicts itself. In 2010, phrases such as “constitution implementation”, “rule of law”, “respect for the constitution” were part and parcel of every Parliamentary discussion and decision.
Five years later, these words have been replaced by “the courts must respect parliament”, “we are the people”, “MPs cannot be left cashless”, “we need our CDF”, “what will we do if we don’t get the cash?”, and other supplications.
The situation is getting out of hand. It has practically reached a point where Parliament throws tantrums every time the courts contradict its decisions, and it seems Parliament is out to take revenge on the Judiciary.
This week the courts made two key decisions that dealt with the core of constitution implementation and constitutionality: the Constituency Development Fund (CDF) decision and the Security Laws decision.
For better or worse, more than 70 per cent of Kenyans, including MPs and Senators, voted in 2010 to do away with the CDF. They transferred those powers to their county’s chief executives, the Governors.
For better or worse, more than 70 per cent of Kenyans, including MPs and Senators, also voted in 2010 to expand and ascertain certain rights and freedoms (expression, media, information, fair judgment) which the Security Laws (Amendment) Act clearly limited, against the Constitution and its spirit.
COURTS SIMPLY DECLARE
For better or worse, the same Constitution gave the courts the job of examining the constitutionality of every law that is brought before them.
The courts do not legislate. They simply declare, and their declaration should be aligned to Article 2 of the Constitution, which reads that “This Constitution is the Supreme law of the Republic and binds all persons and all State organs at both levels of government” and “Any law…that is inconsistent with this Constitution is void to the extent of the inconsistency…”
This does not challenge the principle of separation of powers. It actually strengthens it.
As the judges put it in their decision on the Security Laws (Amendment) Act, “Separation of powers is clearly spelt out in our Constitution. It provides for the separation of powers between the three arms of government by spelling out at Article 1 the respective mandates of the Legislature, the Executive, and the Judiciary. Separation of power implies that the Legislature makes the law, the Executive implements it and the Judiciary determines whether, in light of the Constitution and the law, the conduct is lawful or unlawful.”
ONLY ONE DUTY
The judges noted “the doctrine of constitutional supremacy that it is not the Courts which limit Parliament but the Constitution itself. It also sets constitutional limits on the acts of the three arms of government while giving the Court the jurisdiction to interpret the constitutionality of any act said to be done under the authority of the Constitution.”
In their decision, the judges followed the principle stated in 1936 by the US Supreme Court in the Butler case. At that time, the court said:
“When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy.”
The time has come for Parliament to dress to kill and demonstrate to all Kenyans that they entered fully and willingly into a marriage with the rule of law.
The woman is waiting, dressed to kill, and she will continue waiting until the next election, and the next one, and the next one…
Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi
