Academic journal article Journal of Pan African Studies

Constituting Folklore: A Dialogue on the 2010 Constitution in Kenya

Academic journal article Journal of Pan African Studies

Constituting Folklore: A Dialogue on the 2010 Constitution in Kenya

Article excerpt


Let it be impossible that anything should be done which is unknown to the nation--prove to it that you neither intend to deceive nor to surprise--you take away all the weapons of discontent. The public will repay with usury the confidence you repose in it (Bentham, 1839)

There is an old saying in my ancestral locality of Mt. Elgon that "Judges put on their trousers one leg at a time, just like everybody else." If I understand this slightly sexist statement correctly, it refers to the ineradicable subjectivity brought to the legal system by the very fact of the judge's humanity. From it, we can adduce examples of commonsense justice and its negative counterpart, irresponsible judicial meddling.

The post-election violence (PEV) of 2008 that mostly shaped the current 2010 Constitution was largely blamed on judicial meddling by the executive. As the country marks five years of its current Constitution, there is growing interest in the cultural interpretations of justice in relation to the Constitution. Back in Mt Elgon, justice is considered the principle virtue, the source of all the others in a locality that takes full pride in its status as the 'cradle of humanity'.

In his numerous contributions to the Kenyan 'struggle', the great "son of Oyondi", the late Martin Shikuku, a long term Member of Parliament for Butere constituency in the country's then Western Province, suggested that "We must still deal with that problem" as a philosophical Common Ground for looking at the Kenyan Constitution. His metaphoric social reification was making a stunning reference to the fact that between 1963 and 2005, the Kenyan Constitution underwent very many amendments that it could no longer be classified as rigid. Most of the amendments were not intended to improve the quality of the Constitution, but to entrench an authoritarian and undemocratic administration. Other amendments were intended to solve political problems facing the government from time to time. Most of the amendments were carried out by a Parliament dominated by members of the ruling Kenya African National Union (KANU) party. Contrary to what Kenyan constitutional scholar Yash Pal Ghai had observed that the notion of a constitutional order is broader than merely the text of the constitution. "It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature being the depersonalisation of power" (Ghai 2009: 1). Since my interview with Shikuku in summer of 2009 at Cambridge University, and the Kenyan legal stage no less fraught with confrontation, his call remains strikingly relevant in Kenya's everydayness expressivity.

On 28th of August 2015 as Kenya was marking five years of her current constitution, the Chief Justice Dr. Willy Mutunga in a speech echoing James Madison's words observed that "the fight for a new constitution continues beyond its promulgation. The task of living the letter and spirit of the new Constitution is yet another phase of that struggle that all Kenyans and all institutions must play a key role in" (Daily Nation, 28 August 2015). Like Dr Mutunga, James Madison, the principal architect of the American Constitution and later its Bill of Rights, had no illusions about the efficacy of written limitations on government. "Experience assures us", he wrote in the Federalist Papers in 1788, "not to place too much faith in 'parchment barriers'" against infringement of the separation of powers.

In the premise of the German sociologist Jurgen Habermas' 'communicative action', Madison's 'parchment barrier' fears and Shikuku's 'we must deal with that problem' purview are illustrative of critical praxis in addressing socially and politically constitutive natures. They both reinforce the notion that in order for the constitution to work, it must be taken dialogically serious both by the public at large as well as public officials. …

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