It is opined by some in Kenya that the regime of former President Moi hardly broke constitutional law. For the most part, it rather, applying provisos and rigid compartmentalised thinking, bended and stretched it absurdly. There may be some truth to this. Previously on this platform, I opined that Kenyan society is prone to absolutes, in that instance, equating legitimate use of force with its disproportionate immoral use in “law enforcement”. It would seem that the legal fraternity too suffers its own peculiar version of this Kenyan tendency to be rigid.
At a conference on transformative constitutionalism, Prof. Ambreena Manji noted that for Kenya to realise the aims of its visionary transformative constitution, we needed a certain conversion of the soul, not just the mind, of the Kenyan jurist. At this same conference, the Chief Justice of Kenya, Dr Willy Mutunga lamented the old judiciary’s reliance of “mechanistic jurisprudence”. Such judicial policy led to the dismissal of the late Wangari Maathai’s (later Nobel Peace Prize Laureate) 1989 case against government plans to build a 60 storey building on Nairobi’s Uhuru Park as she did not show what injury would befall her were the environment to be spoilt. In 1989 too, the High Court held that the Bill of Rights could not be enforced as the Chief Justice had not issued enforcement rules as obligated by the Constitution. In 1993, again, presidential candidate, Kenneth Matiba’s election petition ground to a halt as he was unable to serve the sitting president with suit papers personally.
For the past few years, it has been my privilege to teach Constitutional Law at Makerere, the nation’s oldest University. As it is a first year course, I am one of the first teachers who meet with the young impressionable minds that are similarly privileged to gain admission to the law programme. In the course of class discussions, it quickly becomes obvious that even these fresh minds are cynical about the state of constitutionalism in our country, an impression that is only made stronger when we begin to delve into the text and the promise of the 1995 constitution and to compare this not only with our Constitutional history but with the present reality of how the country is being governed. I try as much as possible in these discussions to refrain from infusing my own views into these debates, my intention being to demonstrate the method of constitutional argument and to encourage critical thinking and reflection rather than suggest that there is a ‘right’ answer – which indeed, many times, there is not. This is often frustrating for the students whose constant refrain is: ‘But what is your view?’