I came across this old cutting (pictured above) by chance and it got me thinking about what it means to have political leaders who actually put the public interest first. The then MP for Tetu the late Prof. Wangari Maathai told fellow members of parliament that she was ready to surrender her parliamentary seat and safeguard the Kenyan forests.
In any constitutional democracy, the functions of making, interpreting and enforcing the law cannot be said to be the sole preserve of any one branch of government. Take law-making (traditionally the preserve of Parliament), our Courts and the Cabinet too make laws through precedents and policies respectively. The late Prof. Maathai understood this fact and worked tirelessly to ensure that our statutes, precedents and policies regarding the environment reflected the wishes of Kenyans for a clean environment where natural resources are used in a sustainable manner to meet the needs of the present as well as future generations.
She showed us that government’s interests and the wider public interests are not always alligned as they ought to be. Therefore it is up to people of good will to take up public interest issues that are dear to them and ensure that the government respects the wishes of those whom it governs.
In the 1989 High Court case of Wangari Maathai v. Kenya Times Media Trust Ltd, Maathai took the Kenya Times Media Trust Ltd to court in order to prevent the latter from constructing a high-rise building in a public park in Nairobi called Uhuru Park. Maathai alleged breach of local government laws and brought a representative suit on behalf of the public. The court ruled that she did not have the legal standing (locus standi) to bring a representative suit on behalf of the public and that under the Constitution only the Attorney General could institute suits on behalf of the public. This was a clear example of government interests being at cross purposes with the wider public interest.
With this backdrop in mind, let’s look at the prevailing situation in Kenya today.
There is no doubt that our Constitution is a reflection of the spirit of our society. The problem which arises is that the laws being made either pursuant or in reference to the Constitution are being made with selfish partisan interests in mind and therefore not only do they rubbish public interest but they are inconsistent with the supreme law of the land, the Constitution itself. Luckily, we have the Commission on the Implementation of the Constitution (CIC) which is alive to this danger of allowing government interests to subvert the letter and spirit of Constitution.
Recent history tells us that we must not put all our hopes in the new Mutunga-led Judiciary to set precedents that reflect the wider public interest as enshrined in the Constitution. In the same vein we must not expect the advice of the new Attorney General Muigai to result in holistic and favourable policies to emanate from the Executive in accordance with the Supreme law.
Ultimately, the CIC is a lot like Wangari Maathai: our defender against the greed, selfishness and myopia of the three arms of government whenever they decide to use the powers donated to them by the people in order to satify their own specific interests. In fact the CIC has taken Parliament and the Executive to court for failing to reflect the public interest by coming up with half-baked laws so hopelessly defective that they threaten to disintegrate the fabric of Kenya’s new constitutional order. The CIC, like the late Wangari Maathai did, speaks for all of us in defending the values, rights and freedoms articulated in our Constitution. And so we can only do our utmost to support their efforts and hope that our government respects the wishes of the true sovereign, the people of Kenya.
My suggestion to the CIC would be to come up with a codification of all the documents, statements, reports, drafts, proposals, presentations used to develop the harmonised Constitution, all of which led to the Constitutional text we have today. What I am proposing is something akin to the Hansard for Parliament but in this case uniquely assembled to reflect all the information and reasoning used in arriving at our Constitution. This idea of coming up with this codification is in response to a challenge that the late Maathai faced in 1989 and that CIC faces today: how do you know what the public interest is or was? The challenge of not being looked at as a busibody promoting one’s own views and interests but as a representative of a wider range of interests held by the majority.
Each Chapter and Article in the Constitution reflects a compromise reached between various interest groups therefore it is important that those interests and the majority interests that carried the day are formally recorded and preserved to assist others not only in constitutional interpretation and implementation but also in coming up with new laws. Therefore this codification would serve as a reference point for the three branches of government as they go about their daily business which either directly or indirectly will entail the making, interpretation or implementation of laws. Since all laws must be consistent with the Constitution, this codification would come very much in handy when dealing with ambivalent or ambiguous Constitutional Articles. This codification would also be of great use to all as it would provide a more substantive understanding of the rationale and purpose behind the Chapters and Articles that make up the Constitution. We all know that a lot of resources have gone into the Constitution-making process over the last decade or so and all the documents that were generated from this process must be preserved and referred to constantly as these documents accurately reflect the wider public interest. To my mind, this is a challenge that the CIC must take on as a matter of priority to avoid the back-and-forth debates over the constitutionality of present and future laws.