If text, spirit of law undermine public interest, then change it

I fully agree with the adage that the law is made for man and not man for the law! Often, when I help to unpack sectoral documents like the national land policy, the chapter on land in the Constitution and several recent pieces of land law to audiences, I always point out that the contents are dynamic. They aren’t static and must never be left to constrain us. They were formulated for our use in good faith and can impact either positively or negatively on implementation. What’s good on application must therefore be upheld and ring-fenced for our routine use. But what impacts negatively must undergo appropriate reviews until it sits well on application. And, in a number of cases, what works today may turn inappropriate with time. Then it must be reviewed too. This is why policies, constitutions and laws must always be treated as dynamic tools. They are meant to facilitate our lives and development.

PETITION

Lately, we have observed a trend where public servants indicted on corruption charges are treated differently. Those in State parastatals and the mainstream civil service are suspended and moved out of office once charged in court on corruption. But those in constitutional commissions who have found themselves similarly charged have petitioned the same courts and been allowed to resume duty pending the hearing of their cases, a matter that smacks of inequality before the law. Apparently, they can only be vacated from office through the due process stipulated in Chapter 15 of our Constitution.

This requires that a petition be filed in Parliament setting out the allegations against the petitioned constitutional or independent office holder and, if sustained by Parliament, then the President subsequently suspends them and constitutes a tribunal to deal. Presumably, this rigour cushions these public officers from being hounded out of offices on flimsy or politically expedient grounds. But this process can be convoluted and long since it is subject to the parliamentary calendar and committee hearings. Yet, depending on the allegations against an officer, and viewed against the leadership and integrity criteria laid out in Chapter Six of the same Constitution, a protracted process could undermine public interest.

PROTECT

Among other things, Chapter Six requires that a State officer demonstrates respect for the people of Kenya, brings honour to the nation and dignity to the office while also promoting public confidence in the integrity of the office. But once charged in court, how well does any of the State officers sit against these basic requirements? Does continued stay in office despite the charges demonstrate respect for the people? Does it bring honour to the nation? Does it bring dignity to the office and promote public confidence in the integrity of the office? Doesn’t the text and spirit in some sections work in contradiction, hence posing a threat to the very public interest they were meant to protect?

I do not enjoy a legal background so I hold no pretensions to argue the above through citations and legalese. But anecdotal evidence emerging from the land sector helps us to reflect upon the above and draw conclusions that should guide rational decisions forwards. So what happened in the National Land Commission following the arraignment and charging in court of the commission chairman? There has been lots of information on this filtering into the public domain through our print and broadcast media. This has been complemented by correspondence and activities in the land commission itself.

After their chair was charged in court and restrained from resuming office, the other commissioners gathered together and agreed to rally under their vice-chair so as to move normal public business. But, alas, their chair soon petitioned the court and was given orders to resume office.

STOLEN

On resumption of office, two centres of power set in. The chair subsequently moved to formally question any documents earlier signed by the vice-chair, hence endangering ongoing compensation processes. A computer with compensation data was allegedly stolen. Then the chair reportedly sued his vice for arrogating herself constitutional powers she cannot assume. Meanwhile, where technical public business begs, the commission secretariat remains mixed up. In such porous environment, the reporting structure, accountability and the security of systems and equipment get compromised. Efficiency in service delivery consequently drops! Does this serve Kenyans well? Can they have pride in the officers and the institution? Not at all!

So the well-argued office resumption petition and the associated orders, which are based on the Constitution, have evidently, but without overt intention, undermined public interest. Is there a good case for reviewing the related provisions? Yes, indeed, and a most compelling one. Where the law undermines our intentions and interests, we must tweak it accordingly.

Mr Mwathane is a surveyor; [email protected]