We may be mad at the Kenyan parliament for many things. The outrageous remuneration the House has accorded itself. Its refusal to stand up for justice for the families of the dead and displaced during last year’s political crisis. And, just last week, its decision that we should pay for what was already stolen from us.

There are some things that are common sense and obvious, manipulation of the letter of the law to go against the spirit of the law notwithstanding. A supposed legality ensuing from an illegality cannot hold. It is outrageous that, at independence, the Government of Kenya had to compensate British settlers for land it wished to reclaim. It is equally outrageous that, today, Kenyan taxpayers will have to foot the bill to reclaim what the Government of Kenya was meant to be holding in trust for us and failed to do.

Frankly, those in public office at the time – who benefitted from the irregular allocations of the Mau forest in the first instance – should be the ones to pay the compensation. And it beggars belief that any of them still in possession of those allocations should have the audacity to stand up demanding compensation themselves. This is how twisted we have become. Again, this state of affairs is, in no small part, due to the manipulation of the letter of the law to utterly betray the spirit of the law.

And so, last week, parliament stood up for the spirit of the law in its insistence that the President had overstepped his powers with the re-appointment of the head of the Kenya Anti Corruption Commission (KACC) and his two deputies. In doing so, it came down squarely on the side of public opinion – and earned itself accolades for having done so.

The question is what this means in terms of the letter of the law. It has been argued – and, in fact, was argued during the parliamentary debate – that our Constitution is supreme. Our Constitution gives the President the powers over all public appointments. So it apparently should not matter that the President has assented to legislation that effectively delegates some of those powers. And that the letter of that legislation – in this case, the legislation establishing the KACC – should not matter either (especially when it was explicit only about the appointment process, not the re-appointment process). Which just goes to show the extent to which hairs were split on the matter, re-appointment simply meaning ‘appointment again,’ as pointed out by the parliamentarian from Gichugu, dictionary conveniently in hand.

But it has also been argued – and was argued during the parliamentary debate – that parliament’s breach of the letter of the law was entirely more fundamental. That parliament’s role is that of making law. Full stop. And that is the judiciary’s role – and solely the judiciary’s role – to interpret the law. In effect, the question is whether or not parliament breached the principle of separation of powers. As it has arguably done before, with respect to the role of the Executive in relation to the powers accorded parliamentarians in the legislation establishing the Constituency Development Fund. There the contention is that again, parliament’s role is to exercise oversight over the Executive – not to assume Executive roles itself.

However happy we might all be with the vote in the House, this is a concern that we would do well not to try to argue away legalistically. As we all know, legalese sometimes takes us nowhere except round in circles – especially when the law is being used to essentially justify bad behaviour or score political points – just because it can be so used. There is a principle at stake and we would do well to surface and respond to it.

But, in doing so, we would also do well to surface and respond to the limited options available to the House, as representatives of the people (at least theoretically and sometimes, sometimes in practice) when either the Executive or the Judiciary behaves badly. When the Executive is told it’s behaving badly and refuses to respond, what is the House to do? When the Judiciary’s past decisions, relating to the bad behaviour of the Executive, make the House unwilling to put its faith in it as a control on the Executive, what is the House to do? Withhold approval for expenditure by the same? Is that really all that it can do?

Which brings us back to the core motivations behind the drive for constitutional reform. The desire to end the imperial presidency. The desire for real separation of powers. The desire for real checks and balances among the three arms of government. It is clear that the letter of the law (the current constitution included) is not sufficient in any of these respects. But it is equally clear that those involved in all three arms of government are well aware of this. Hence having a constitutional reform process underway. A public service reforms process. A judicial reforms process. And so on and so forth. It thus behoves those in all three arms of government, especially at this critical point in our country’s history, to act always – and be seen to act – according to the spirit of the law.

Accountability is actually a straightforward concept. Children learn not to do wrong due to their knowledge that there will be consequences for the same – from their parents or their teachers or whatever the case may be. Adult liberal democrats learn, at the very least, that corruption is an opportunity cost. Adult Marxists learn that the world works on dialectics – action, reaction, synthesis. There is no arena of life where there is no notion of consequence. None.

The President is now paying a fairly humiliating price for having not just done the right thing from the start. The humiliation is a consequence – and an utterly unnecessary one had he just gracefully backed down. Ditto the head of the KACC and his two deputies – who had every individual power to say to the President: Thank you for the confidence, we appreciate it but we ask that you follow the letter and spirit of the law to enable us to resume work with full legitimacy. We have to get over this idea that we must hang on to every bad decision for dear life – using the law to try to do so. Because, in doing so, we only erode everyone’s adherence to the law.

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* This article first appeared in The East African.
* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at Pambazuka News.