The imperatives of living by our constitution

Mr President, Mr Prime Minister, Mr Speaker, Mr Vice President, the Chair and Members of the AU Panel of Eminent Persons, retired presidents, friends, colleagues, fellow citizens, it is an honour to have received invitation to address you today particularly on an issue no less important than that of living by our constitution. I want to thank Dr Kofi Anan and his panel both for their courageous and selfless service to this nation at a difficult time and also for hosting this conference to enable us as a country to reflect and look into the future.

There is an influential section of legal scholarship that has made the argument that the crisis of governance in contemporary Africa has been a deadly combination of bad constitutions, often imposed and subsequently serially amended to create imperial presidencies on the one hand, and an absence of constitutionalism – the absence of a culture to obey and respect rules, on the other. Coupled with bad leadership and general institutional malaise, the transition to democracy has been inchoate, dominated by reversals at every stage. The result: a tortured population inhibited from realising its full potential; an institutional culture of timidity, even where no threats exist; and a society and politics characterised by violence, fragility and instability. The economic, political, and human costs have been incalculable. Hence the reason we must not be blithe and casual in our treatment of constitutional texts, once freely enacted, after years of struggle and sacrifice.

There is no doubt that Kenya has a very progressive constitution. It is long not just in size but also in aspirations – an ambition of a nation codified and expressed in very clear accents. And it was also long in coming, itself a denotation or proof of the importance of this social contract. But we will only live it if we understand it; only if we embrace it; and only if we respect it. As leaders and citizens, these are the three simple tests we must meet in order to breath life into this constitution.

For those who may be tempted to bear the illusion that Constitutions are mere pieces of paper, I want to invite you to reflect on this fact: It is not by accident that when state officers take office, whether in the executive, legislature or judiciary, or even in other independent constitutional offices, they are required to take an oath as prescribed in the constitution. If it did escape your attention before, now it must not: whereas those oaths bear different textual forms, there is always a common refrain: ‘to protect, defend and uphold the constitution and other laws’. The meaning of this ubiquitous line is direct: all state officers are creations of the constitution and the law. Its implication is plain and simple: in the words of a philosopher who was here long before us – be ye so high, the law is above you. Its political and philosophical foundations very clear: the constitution is a social contract among citizens and once leaders are elected or appointed into office they are sworn and bound to respect this contract.

Citizens and leaders of this country must internalise and understand why the assumption of high office is preceded by the taking of an oath that constantly binds them to act in accordance with and defend the provisions of the constitution. Understanding the import of this basic act is the beginning of living our constitution. Any leader who doesn’t is unfit to be in office. Any citizen who hasn’t is failing the test of good citizenship. Strict compliance with the constitution and the law is so important that it forms the first ground for impeachment of the president.

But this law that is above all of us, and which we must do our duty to obey, is not an imposition. It is a product of popular will and consent to be ruled by its edict.

The excitement and good spirit of this conference today, may very easily obscure or conceal its tragic origins. These series of dialogues are an expression of institutional failure. It is because of a failed electoral system, a failed judiciary, a failed police force and a general failure of the state in 2007/2008 that provided the basis for this and other consultations before it. Restoring confidence and faith in our institutions is part of living our constitution. It is the small things that we do as institutions and citizens that begin the process of building confidence.

The promulgation of the constitution on 27 August 2010, was a historic moment in our country. The constitution was a culmination of the work of a lifetime for most people in this gathering and many other Kenyans not at this meeting. It may also stand out in history as the singular achievement of Kenyans in this time. Needless to say, many Kenyan persons paid for the achievement of this constitutional dispensation with their tears, blood, and sweat. Lives and personal liberty were lost, friendships were strained and families were shattered. It is all too easy to forget these heavy prices paid by our compatriots. In short, we need to remember that the consideration for this social contract that is Kenya’s constitution was the highest possible price the citizens could have paid for it.

For that reason, the taking of effect of this constitution is an achievement of a once far-off dream. Yet, my concern is that there appears not to have been a proper appreciation of the essence of this constitution after its promulgation. From the statements, actions, inactions and perfidy that is evident among some citizens, some authorities and persons are signals of another reversal in our democratic transition that has been the bane of most African countries is becoming evident. Some of these actions are by default; others are by design but the category does not matter for their cumulative effect is the same. I have come to the inescapable conclusion that there are Kenyans at all levels who are yet to make the mental shift to the national and individual conduct that the constitution heralds.

It is depressing that one year after the promulgation of the constitution, the country falls in the corruption index, we still hear of extrajudicial killings, institutions and leaders play fast and loose with constitutional deadlines and so on. Constitutional provisions are there to be obeyed and any public or state official who finds certain clauses administratively inconvenient must be reminded that vacation of office is a honourable option if one no longer feels capable of honouring his or her oath of office to protect, defend and uphold the constitution.

There is discernible stonewalling by certain sections of this country to the establishment of the institutions that are required to be formed, deliberate disregard to the rights of the citizens and utter refusal to incorporate its principles in the instruments of governance.

My response is this: living by the constitution of Kenya is not a choice for any individual, institution, office or authority. All Kenyans must comply and live within the edicts of the constitution.

Compliance with the constitution is not about picking those that afford us our desired rights and ignoring our responsibilities therein. It is not an all or nothing situation. Kenya must comply with the whole constitution all the time and in every office. From the tiniest hut to the State House, this constitution must apply, to the lowliest hawker no less than it will apply to the corporate titan, to the governor no less than the governed. That is what the rule of law means. It is what equality before the law requires.

I do not underestimate the difficulty of living by this constitution.
Yet the rule of law is not for the faint-hearted. There is not time or opportunity to implement the constitution in half-measures.

We cannot live only with our likes and ignore your dislikes. This is particularly true in light of the fact that it may be possible that there are certain clauses that may be more appealing to us than others. For those of us within the arms of government, we must remember that we are under obligation to abide by the whole constitution not individual clauses.

We must foster the realisation in all that this constitution is for all Kenyans. That is why its destiny has been placed upon all of us. It has placed responsibilities to ensure its implementation on all. No one is immune from the duty to uphold the constitution. In short, we must be each other's keeper in ensuring that the constitution is lived to its fullest.

Therefore, living by this constitution means that we must do what it requires to be done, when it is required to be done whatever the cost in finance, in effort and in personal convenience. Secondly, we must reconstitute, reform and dismantle those institutions and offices it compels us to.

Public participation is one of the fundamental principles in the new
constitution. It runs the entire gamut of the document. Citizen vigilance is important in protecting and promoting our constitution.

But the public should not merely demand of their leaders to respect the constitution, they must also live by its edicts. It worries me when I see daily individual transgression where citizens routinely violate the rights of other citizens. Living the constitution is not a preserve of the leadership; it is an obligation that reposes in the citizen as well. In your daily conduct, in your relationship with other Kenyans, in exercising your right to choose leaders you have a responsibility in giving life to the constitution.

If you choose to elect a leader who fails the test of Chapter Six, you will be as guilty of undermining the constitution as a leader who thinks that ignoring court orders is an act of nobility. Choosing to support extrajudicial killings, as opposed to submitting to due process, amounts to killing the constitution. In choosing the path of electoral violence, instead of a free, fair, and peaceful electoral process is to subvert the constitution. In choosing to play ethnic politics, instead of patriotic politics contributes to the killing of the constitution.
Fellow citizens, we have made a contract with ourselves; let us perform it. The constitution is the performance contract we have signed among us as citizens as well as between citizens and the governed. Every single day, we must ask whether we are hitting our constitutional targets in this performance contracting.

The business community must learn that it is in its long term interest to have a constitution that works, and a country that respects the rule of law. The effort it put in the referendum after years of mistaken belief that the constitution was not its business will be wasted if it does not pay attention to the implementation of the constitution. I also want to recognise the immense contribution of the international community to the struggle for the new constitution. They provided significant resources and support at critical stages and still have a responsibility to continue supporting this country in building its democracy.

The judiciary will play its role as mandated by the constitution. As I said in my statement during the inaugural sitting of the Supreme Court, we shall not blink or flinch in interpreting the constitution and also remaining true to the oath of office we took. The constitution has radically changed the way the judiciary is organised and operates. Every day we are doing our part to live by the constitution. The judiciary will play its role as mandated by the constitution.

That is why we have embarked on an ambitious transformation framework for a functional judiciary which is a major determinant for good politics and good business. For the security of tenure you have given us, the judiciary must and will show its independence.

We shall not hesitate to act as long as we are doing so within the confines of the law. It is a commitment I want to give to the country: that when it comes to upholding and protecting the constitution, the judiciary will not be for turning.

To the two principals, I have this to say: You have made your own sacrifices to have this constitution. I remember your struggles on the trenches for a better Kenya and a new constitution. I particularly recall your participation in the National Convention Executive Council and the mass action of 1997.

It is a good thing that you have ascended to high office.

However, I hope that you appreciate that the biggest legacy that you will leave for this country is not so much the fact that you ascended to power but that you facilitated the delivery of a new constitution and defended it when it was under attack.

To fail to protect this constitution will be a betrayal of your own struggles; a betrayal of your own oaths of office and a betrayal of the struggles and aspirations of the many Kenyans.

Fellow Kenyans, we must all go back and read the constitution.

Each institution must go back and read the constitution and systematically understand what it means for their work.

Living by our constitution demands that we learn and know its contents not through some remote imbibing or ‘I hear the constitution says, type
of discussions – it means taking individual responsibility to read and
obey it.

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* Justice Dr Willy Mutunga is chief justice and president of the Supreme Court of Kenya. This speech was delivered at the Kenya National Dialogue Conference in Nairobi on 5 December 2011.
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