|THE POLL-RELATED EVENTS are, indeed, catastrophic and there is a risk they may recur unless we have learnt something. In my view, the most important lesson is the meaning and place of “The Rule of Law”.
There is a distinction between legality and legitimacy. Constitutionalism and legality repose within the province of rule of law. Legitimacy relates to morality, public trust and, in some sense, sovereignty.
Remove legitimacy and the rule of law is vacuous and meaningless.
For instance, shouldn’t ODM have submitted its electoral petition to the High Court for proper arbitration? Vice-President Kalonzo Musyoka, Mr Mutula Kilonzo and others have submitted that ODM’s refusal transgresses the rule of law, which they aver, correctly, is the bedrock of constitutional democracy.
Shouldn’t PNU have spurned Mr Kofi Annan the way they did Archbishop Desmond Tutu before, and, other meddlers in out internal affairs?
One of the eight elements of the rule of law is that Government must act strictly within the law and not arbitrarily. The other is the principle of equality before the law, or equal subjection of all entities to the ordinary law of the land.
To concede that there were electoral irregularities or fraud, perpetrated by the Government, or its agents, is to confess that the Government was guilty of contempt for the rule of law.
The rule of law as a juridical ideal, exists, first and foremost, to circumscribe government activity.
Government must demonstrate punctilious fealty to this principle before seeking its protection.
Section 44 of the Constitution (determination of election disputes in court) was created on the assumption that ours is a “government of laws and not of men”.
Our own Constitution does not expressly entrench the rule of law! It, however, proclaims its own supremacy.
Contrast this to Article One of the South African Constitution, which stipulates that South Africa is a sovereign, democratic state, formed on several values, including, Art 1 (c ), “Supremacy of the Constitution and the Rule of law”.
So, if we value it, let rule of law be entrenched, and let’s have the Promissory Oaths Act, amended so that key state functionaries (the President, the Chief Justice, the Attorney-General and the chairman of the Electoral Commission of Kenya swear to uphold the rule of law. Currently they do not.
The lesson is that institutions that support constitutional democracy and transparent governance must seek legitimacy, to fortify legality.
Advocates of judicial intervention in the situation are swift to cite the case of Gore Vs Bush, in which Al Gore contested the declaration of victory to George Bush in the 2000. The US Supreme Court granted victory to Bush. True, the Supreme Court’s logic on this occasion, on its face value, befuddled.
THE AMERICAN CONSTITUTIONAL architecture (Electoral College and universal franchise) though unfamiliar, and seemingly antiquated, has great historical import — it is necessary to preserve the federal structure of the state.
Article 1A of our Constitution makes Kenya a multi-party democratic state. The Constitution does not entrench the Electoral Commission, even though the ECK supports constitutional democracy. Without formidable fortification, it becomes hostage to shifting political impulses. Insecure and infirm, it cannot discharge its presumed constitutional mandate. The rule of law, suffers.
The Police Act restricts the police to using only “reasonable force” or force necessary to subdue or effect arrest or forestall escape from lawful custody. The Act does not dispense “maximum force of law”.
As for legitimacy, the Force earned none, after December 27. Is it conceivable, that Kenya’s combined intelligence and security apparatus was caught unawares by the initial and subsequent blood-letting in Eldoret, Naivasha and Kisumu?
The point is that, the rule of law cannot be available when the enforcement instruments of State are partisan or complicit (Naivasha), or incompetent and negligent (Eldoret, Kisumu).
John Locke stated in 1690: “Wherever law ends, tyranny begins”. To ensure rule of law, the Police Force must be thoroughly reconstituted, its leadership granted guaranteed tenure; and structural mechanisms introduced to ensure its depoliticisation.
The rule of law concept has three separate, but interrelated expressions: Rule under law (government is subject to law); Rule according to law (equal application and subjection to existing and published law) and finally, rule according to a higher law. The last means that ordinary law must conform to higher universal standards of morality, justice and fairness.
The last lesson we must learn relating to the rule of law, is the effect of globalisation on sovereignty. The post-1998 world has diluted sovereignty, either by nations voluntarily ceding parts of sovereignty to regional or multilateral bodies, or, nations being at the mercy of international “morality”.
Nation states are increasingly being forced to conform to certain minimum standards of conduct. Global sanctions are available in case of recalcitrance.
Lastly, the rule of law does not mean rule by lawyers. It requires durable institutions with unquestionable legitimacy. Herein lies our security and peace.
Major Oswago, is a lawyer and management consultant.