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Currency was made for us, not us for it

Wednesday June 19 2019

Central Bank of Kenya

Central Bank of Kenya Governor Patrick Njoroge displays new notes at his office in Nairobi on June 3, 2019. The phasing out of old notes will be concluded by October. PHOTO | SILA KIPLAGAT | NATION MEDIA GROUP 

ASHFORD M. MUGWUKU
By ASHFORD M. MUGWUKU
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The Bible records when Jesus taught that “The Sabbath was made for man, not man for the Sabbath”.

This statement was in response to the accusations that his disciples had broken the law regarding resting on the Sabbath Day when they walked by some corn fields and plucked heads of grain.

ORIGINAL INTENT

The Sabbath, just like our Constitution, was intended to help and benefit the people, not burden them. But the Pharisees’ law had morphed the Sabbath into a burden, adding restrictions beyond what God’s law stated.

The disciples had not broken God’s law (read Constitution); they had only violated the Pharisees’ strict interpretation of the law. Jesus, therefore, reminded them of the original intent of the Sabbath Law.

Kenyans, and our Judiciary, must always remember the original intent and spirit of the Constitution. Just like the Sabbath, the Constitution was made to serve Kenyans and to be for their benefit. Sabbath was, therefore, not a day for legalistic rules that turn the day into a burden as Pharisees had done.

The opposition to the new currency in Kenya should be seen in the light of reflections on the biblical teachings regarding the Sabbath. Regardless of the wording of the Constitution, its interpretation must be purposive, liberal and in line with the overall good.

Debate rages as to the legality or constitutionality of the new currency, which has been argued in some quarters as being irregular, unconstitutional or unlawful. The proponents of this argument lament that the move is contrary to Article 231 of the Constitution, alleging that the notes bear a portrait of First President Jomo Kenyatta.

Article 231 of the Constitution establishes the Central Bank of Kenya (CBK) and clothes it with independent powers responsible for formulating monetary policy and issuing currency, among other functions.

GOVERNANCE

It is fundamental to point out that Article 231(3) provides that “The Central Bank of Kenya shall not be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions”.

Article 231(4) provides that “Notes and coins issued by the Central Bank of Kenya may bear images that depict or symbolise Kenya, or an aspect of Kenya, but shall not bear the portrait of any individual.”

In interpreting the said Article, recourse must be had to Articles 259 and 260 of the Constitution, which gives directions on how to construe and interpret the supreme law of the land. The fundamental guiding principles of construction and interpretation are that the Constitution shall be interpreted in a manner that: Promotes its purposes, values and principles; advances the rule of law, human rights and fundamental freedoms in the Bill of Rights; permits development of the law; and contributes to good governance.

For the avoidance of doubt, the Central Bank of Kenya Act, which is an offspring of Article 231(5) of the Constitution, gives the CBK the sole right to issue and withdraw notes and coins in Kenya.

Section 22 of the CBK Act provides that: “The Bank shall have the sole right to issue notes and coins in Kenya and, subject to subsection (4), only those notes and coins shall be legal tender in Kenya.

“The denominations, inscriptions, forms, material and other characteristics of the notes and coins issued by the Bank shall be determined by the Bank in consultation with the Minister, and shall be notified in the Gazette and in other media of public information likely to bring them to the attention of the public.”

ENSLAVED

Without delving into the merits or demerits of the court cases which have been filed challenging the legality or constitutionality of the new currency, it will suffice to state that the important questions to be answered include whether the CBK is subject to control, direction of any person or authority in the exercise of its powers or performance of this particular function of issuing currency.

And if the answer is in the affirmative, let us ask whether such direction/control or authority includes control or direction from or by activists, the public, the Courts, et cetera.

It will be interesting to see how the court interprets Articles 10, 231(3) & (4), as well as Articles 259 & 260 of the Constitution in this regard.

Ultimately, the question to answer is whether it is lawful for the CBK to do good on the Sabbath day in the interest of all and/or whether Kenyans are meant to be burdened or enslaved by the Constitution as worded or it is for the supreme law to serve the people.

Mr Mugwuku is a lawyer. [email protected]

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