GHAI: Constitutional ‘crises’ mostly hot air

It is too common for people to talk about “constitutional crises”.

I note that Professor Makau Mutua even wrote about a possible “existential constitutional crisis”.

Who or what was at risk of ceasing to exist? Existential is another over-worked and ultimately meaningless word. The main users of “constitutional crisis” seem to be the media and lawyers.

It’s in the media’s interest to stir up a sense of something dramatic about to happen so that people will read, view or listen to their product or words.

And lawyers suggest their solution to a problem is the only one to guarantee avoidance of disaster – not to mention a marketing tool known as “you need our services.”

In other words, “constitutional crisis” is an advocacy tool and not usually an objective description of something that is about to happen.

To the extent that there is any crisis, it is usually because politicians concerned, as usual, with access to power deliberately ignore, disobey or distort constitutional rules or principles.

I would suggest that we need much more focus on the possible solutions that the constitution contains to dealing with problems, rather than nit-picking or simply ignoring what the constitution provides.

CONSTITUTIONAL CRISIS

A recent book, ‘The Cycles of Constitutional Time’, said, “A constitutional crisis occurs when a constitution is about to fail at its central purpose — to keep struggles for power within the boundaries of law and the Constitution.”

In reality, most of the time we have, as Dr Erick Ko- molo commented, a political crisis. Indeed there is not necessarily any crisis at all. Let’s look at two situations recently called “constitutional crises”.

One is, obviously, the issue whether a new Deputy President could be appointed while the impeached one was still fighting in court.

Professor Githu Muigai, addressing the court, talked of a “grave” and a “serious” constitutional crisis, while otherwise waffling on about whether he (not a judge) should recuse himself. All theatre.

I have not read the court ruling removing the stay on swearing in Prof Kindiki, but evidently, the court thought that not having a seamless move from one DP to another was a problem.

This is clearly not true. The Constitution allows the President 14 days to nominate a new DP and the National Assembly 60 days to vote on the nomination – two and a half months with no DP. And it also says that if the President leaves office for any reason, and there is currently no DP, the Speaker of the Assembly acts.

And in all – how much would we notice if there was no DP? The Standard newspaper wrote three months ago that CEO Marjan Hussein of the Independent Electoral and Boundaries Commission said, “The commission faces a serious constitutional crisis over failure to undertake a review of electoral boundaries by March 2024, which the Attorney General has since said will have far-reaching consequences on the country’s political stability, social cohesion, and integrity.”

The constitution says a review must take place within 12 years from the last, a period that ended in March 2012. The Kenya National Human Rights Commission in an otherwise measured statement urging the government to get moving on appointing new IEBC commissioners, talked of a constitutional crisis.

Some MPs even wanted to amend the constitution to allow Parliament to extend the time for the boundary review. I see at least two solutions.

First, the constitution does not say that if 12 years pass no review can take place. This would be ridiculous. When the IEBC is fully constituted or at least has a quorum of commissioners the review can take place.

The only real problem comes if it gets within a year of the 2027 elections because no change of constituency boundaries can take place within that year.

And the KNCHR rightly says the process can be started by IEBC staff without commissioners. In fact, I wonder if courts have been too ready to say commissions can’t act without commissioners. The commission still exists as a legal body.

Most of the work is done by staff anyway. Commissioners generally are supposed to be policymakers and oversee the work of staff. (If the IEBC was required to certify that a new DP was qualified something that I am not sure about there is no reason in my mind why the staff cannot do this checking they would do it anyway).

Justice TA Odera took a common sense approach in July. The main issue was appointing a new deputy governor of Kisii after removal the governor’s removal through impeachment.

The IEBC was reluctant to gazette the governor’s nominee as replacement because of the lack of commissioners.

The judge held that gazetting elections and nominations of officers, including deputy governors, Members of Parliament, and county assemblies “is an administrative action, to be undertaken by the Independent Electoral and Boundaries Commission secretary/ chief executive officer, and is not dependent on the composition or quorum of the Independent Electoral and Boundaries Commission”.

DOCTRINE OF NECESSITY

There is an old doctrine that must be used with caution: the “doctrine of necessity”.

This has been applied in Kenya, including by the Supreme Court, to allow it to sit with a judge who on general principle ought not to sit, to avoid the greater injustice of the court not being able to sit at all. It is often said, including in at least one Kenyan case, that it [the doctrine of necessity] cannot be used to amend or go against the constitution.

But it may be useful. However, would it even be such a great crisis if the boundaries were not revised before 2027? MPs will say so because they are the ones most bothered because of issues like CDF.

In reality, our constituency boundaries are far from ensuring fair rep- resentation of the people especially because of the women reps.

And MPs seem desperate to preserve existing small constituencies that must go if we are close to equality of vote, thus delaying further the achievement of one person one vote one value (I am not talking about one shilling but a vote of equal impact).

A bigger current issue is the IEBC’s inability to hold by-elections. A considerable number of Kenyans do not have their constitutional representation in legislatures: by August, 11 constituencies or wards lacked MPs or MCAs.

Could the IEBC staff realis- tically conduct these? Which is the greater problem? No representation for these constituencies or representation on the basis of elections conducted by staff only?

Admittedly, the longer we have no commissioners and presumably no new staff can be appointed the less capable the existing IEBC might become. We do have a problem with re-establishing the IEBC, stemming particularly from politicians wanting to have a system that favours them and going to court constantly to try to guarantee that.

Chief Justice Martha Koome talked sense when she said, at the 12 years- on Supreme Court event this week, that politicians should try to settle their political disputes without going to court.

This involves sitting down together and working out what are the possibilities to resolve disagreements within the constitution, and avoiding the tendency to search for apparent nonsense in the constitution, and insisting that we have a constitutional crisis.

We also have to watch if they don’t agree to read the Constitution wrongly.

That book defining CC also says the US suffers from “constitutional rot”.

“When public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interests of a relatively small number of very powerful individuals, democracy and republicanism decay.”

Do we have constitutional rot? Does it sound familiar? But it’s not the Constitution that is rotten