UPHOLDING CONSTITUTIONALISM

The foundation of any nation or institution is anchored on the rule of law and the constitution. Lack of it or applying it in piece-meal or partially leads to chaos and it’s a recipe for war. Kenya has been on the path of constitutionalism since our independence in 1963. The journey has not been easy; it has been tough and rough. Many people have lost their lives in the process of our democratization not to mention the political struggles of the late 80’s and 90’s.  It would be unfortunate for this nation to retrogress and go back to those dark days.

Constitutionalism has been defined as a “political philosophy based on the idea that government authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can’t do”. The wishes and aspirations of a people are spelt out in their constitution. It is a sacred document that binds a nation and states and how they wish to be governed. Hence, going against it amounts to coercing the citizenry to dictatorial rule. Power to govern as provided for in a constitution is derived from the people and it’s only them who can choose their rightful leaders.

In light of this, you will appreciate that the Kenyan constitution as promulgated in 2010, has been described as the most progressive in Africa. Kenya is way ahead of many African countries as far as constitutional matters are concerned. In the last couple of months, sections of our Constitution and constitutional bodies has been stretched beyond limit. The nullification of the Presidential election on 1st of September by the Supreme Court was the first on the African Continent. Those involved did not have a choice but to abide by the rule of the law. The court demanded for a re-run to be conducted within the set out framework. Upon the repeat of the election on 30th October 2017, the Independent Electoral and Boundaries Commission (IEBC), declared the President as duly elected. However, after another round of hearings the Supreme Court upheld his election which was followed by his swearing in on the 28th of November in accordance to the Constitution having followed all the due processes.

As a result, the National Super Alliance (NASA) has consistently stated that they will not recognize his Presidency which is within their democratic right, unfortunately they have proposed that they will swear-in their Party Leader as the ‘People’s President’. It is important to note that this action is against the Constitution because of several reasons. First, the law only envisions that only one person, duly elected and announced by constitutional offices can take the Presidential oath for a five year term. Secondly, the law subscribes that the oath can only be administered by the Chief Justice of the republic or his/her deputy in their absence. Thirdly among other things it should be taken in a public place and date after issuance of a gazette notice.

 

NASA’s intent to swear in the former Prime minister has not followed the set standards as enshrined in law. Hence, their plan is illegal, unconstitutional and should be discouraged as much as possible. The law states that any attempts to swear in any person as president, other than the one elected in line with the law is null and is considered as treason high treason. Bearing this in mind, I wish to appeal to the former Prime Minister to reject the proposals to have him sworn in as President and avoid those around him who may be misadvising him. Such attempts will only create unnecessary tensions and chaos. The constitution must be followed by all and sundry whether its effects seem favorable or not. We as a Church are non-partisan; however we must uphold the law and the constitution.

In the words of the Chief Justice Maraga: “The greatness of any nation lies in its fidelity to the constitution and adherence to the rule of law and above all respect to God”

 “One who turns away his ear from hearing the law, even his prayer is an abomination”. Proverbs 28:9

Have a Lovely Sunday.