It was a sad day for the Constitution

As I watched the proceedings in the National Assembly on Thursday, the Speaker repeatedly shouted “Order” Honourable Members!” At one point, seemingly in response to a comment from the floor of the House, the Speaker stated: “There is no other way that I can refer to you other than as Honourable Members”.

A thought came to my mind, and lingered there for the rest of the day: If any other group of Kenyans were acting in the manner Members of Parliament were, we would (rightly) describe them as hooligans!

But these were Honourable Members! If any other group of Kenyans were engaged in a free-for-all multifaceted brawl such as the nation was witnessing on the assembly floor they would (again rightly) be subjected to arrest and other stern law enforcement measures, for a variety criminal offences, including, affray, assault and battery. But these were Honourable Members!

Thursday, December 18, was a day of national shame, a sad day for our nation and for Wanjiku’s constitution. The people’s representatives, those who comprise one of three arms of government, with a constitutional duty to make laws and defend the Constitution, demonstrated utter and complete contempt for the rule of law in particular, and the Constitution that each of them swore to uphold, in general.

PUBLIC PARTICIPATION

Yes, it is true that the processing of the Security Laws (Amendment) Bill fell short on the constitutional imperative of public participation, and stakeholder consultation. Yes, understandably and given Kenya’s history, any law that seeks to limit fundamental rights and freedoms will invite strong emotions. None of these, however, indeed nothing, can be justification, for such behaviour as was witnessed on the floor of the House.

The floor of Parliament is a place where the people, through their representatives, exchange ideas and debate, in the interests of the people, and within the confines of the Constitution and the laws, and in accordance with the agreed rules and procedures that are set out in the Standing Orders.

In the finest tradition of the Commonwealth parliamentary system, debate in the House is conducted with utmost decorum and civility. Despite the adversarial character of our Parliament, respect for procedure and for adversaries, is the hallmark of this institution.

This is why, in the tradition of the House of Commons, Members refer to each other as “Honourable” ... to sustain the mutual respect even in the context of the most extreme divergence of opinion. In a similar vein but in a different context, in adversarial legal proceedings in the common law system, lawyers traditionally refer to each other as “learned friends”. In both cases, the minute the mutual respect is dropped, anarchy takes over. This is what was witnessed on the floor of the National Assembly.

In the case of Kenyan parliamentarians, however, the matter goes beyond best practices and tradition. It goes to the individual constitutional obligations and responsibilities of MPs as State Officers.

Article 73 of the Constitution states that authority assigned to a state officer is a public trust to be exercised in a manner that, inter alia, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office. Further, Article 75 provides that a state officer shall behave … “In a manner that avoids demeaning the office the officer holds”.

NO HONOUR

MPs engaging in violence, both verbal and physical, against one another, neither brings honour to the nation, nor dignity to the institution of Parliament or the individual offices held by Members.

The sight of MPs wantonly committing criminal acts against one another with abandon, certainly does not promote public confidence in the integrity either of the individual offices, or indeed of that arm of government. Without a doubt, reducing the proceedings of the National Assembly to an indisciplined brawl is as demeaning to the institution as the imagination can fathom.

It is my submission that every Member who participated in the melee that passed for parliamentary proceedings on Thursday violated the Constitution fundamentally. We must, therefore, as a nation ask whether the perpetrators of such behaviour are fit to hold office as state officers.

It is ironic that some MPs ostensibly justified the criminal and shameful actions on the floor of the House, in the name of defending fundamental rights and freedoms enshrined in the Constitution. No no, and no again! Respect for the Constitution and the rule of law must be holistic. The Constitution can only be legitimately defended in accordance with its own provisions, and in particular, in a manner that upholds the rule of law.

We must also ask ourselves: If we accept this behaviour from Members of our supreme law making body, on what basis would we object to rioting students who burn their dormitories, youth who throw stones and other objects at their president, or “men in black” who violently disrupt party meetings.

Yes, Thursday was a sad day for the Constitution of Kenya and the rule of law.

Charles Nyachae, chairman, CIC