The constitution - a charter of rights or a bundle of pious platitudes?

The Constitution and Human Rights: the US Experience

Although the United States had been founded on a revolutionary creed which declared that “all men are created equal” it became a society that discriminated, dehumanised and exploited African-Americans. The African-American slaves were regarded as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so inferior, that they had no rights which the white man was bound to respect; and that the Negro might justily and lawfully be reduced to slavery for his [the white man's] benefit….” Dred Scott v. Sandford. The constitution and the laws of the United States did not recognize and protect African-Americans as human beings. They were mere chattels in the hands of white people. This phase of chattel-slavery ended with the official emancipation at the close of the American Civil War.

We can with authority assert the fact that, by 1870, the Constitution of the United States guaranteed equal rights under the law to all citizens, inclusive of the recently freed slaves. This was assured with the passage in Congress of the 13th, 14th and 15th Amendments to the constitution. Yet, even with those constitutional safeguards in situ, “the Negro was systematically denied the rights those amendments were supposed to secure. The combined actions and inactions of the State and Federal governments maintained Negroes in a position of legal inferiority for another century after the Civil War.” This was accomplished with the connivance and complicity of both the States' and the Federal judiciary.

The Congress of the U.S. passed the Reconstruction Statues and the Civil Rights Act in a bold measure to promote racial equality after the Civil War. The Supreme Court in some inimical decisions nipped these measures (tailored to uphold the equal protection of the law for the former black slaves) in the bud. The Supreme Court in the Civil Rights Cases, declared null and void sections of the Civil Rights Act of 1875 that made it a crime to deny equal access to “inns, public conveyances, theaters and other places of public amusement.”

The penultimate act by the Supreme Court in its determined onslaught to deny the former slaves enjoyment of equal civil rights, occurred in Plessy v. Ferguson. It held that the 14th Amendment was not intended “to abolish distinctions based on color, or to enforce social as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” This decision gave legal legitimacy to “Jim Crow” (segregation) laws.

The segregation of the races was extended to residential areas, parks, hospitals, theatres, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that Negro and white prostitutes be kept in separate districts . . . . [T]he enforced segregation of the races continued into the middle of the 20th century. In both World Wars, Negroes were for the most part confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman.

The Supreme Court had connived in the denial of equal rights guaranteed under the constitution to African-Americans.

In the first half of the 20th century, we encounter African-Americans before the Supreme Court, relentlessly petitioning for equal rights and equal protection. The Supreme Court finally decided in their favour in 1954 but that did not end their misery. We see them boycotting segregated buses in Montgomery, Alabama, in 1954-56. We meet them boycotting segregated facilities all over the nation. They engaged in sit-ins and freedom rides in an endeavour to put an end to segregated facilities. In this they were inspired and guided by the prophet of non-violence, the late Rev. Dr. Martin Luther King Jr. They faced massive resistance, violence and death. But they introduced the civil rights revolution of the 1960s and managed to make some gains.

A Constitution does not Execute Itself – the Kenyan Story

Britain bequeathed to independent Kenya a limited government based on the Westminster Parliamentary System. The constitution incorporated the scheme of separation of powers between the three co-ordinate branches of government: Legislative, Judiciary and Executive. It guaranteed the sanctity of civil rights with an enforceable bill of rights. The new constitutional order was a far cry from the authoritarian colonial legal framework that only recognized the legal and political rights of the white settlers. The challenge confronting the ruling African elite of the emergent nation was to respect the constitution and foster a democratic society under law.

The cavalier attitude of the emergent African rulers to the constitution became evident soon after independence. This was disclosed in the answer given to question No. 122 (on the disputed boundary between Thika and Makuyu) raised by a member in the National Assembly, by the powerful Minister of Justice and Constitutional Affairs, the late Thomas Joseph Mboya. “I want to make it quite clear, asserted the Minister, “that the Government is concerned with watching how the constitution is working, and noting its various difficulties, weaknesses and obstacles. When we find that any part of the constitution is not practical or workable, it must be amended.” The new rulers were good students of colonial authoritarianism. For them the constitution was a vehicle for the establishment of political hegemony and control. It had to be “practical or workable” in the hands of the rulers. It was a powerful weapon to control citizens and crush those who threatened the rulers' grip on power.

As shown in the above answer by the late Mboya, the new rulers, driven by an insatiable greed for power and material possessions, embarked on a systematic unmaking of the Uhuru Constitution through numerous amendments to make it “practical or workable.” By so doing, they undermined the scheme of checks and balances and created an all-powerful Executive under an autocratic president. Tom Mboya became the tragic victim of the unchecked political power he had helped to create by unmaking the independence constitution. He was felled by an assassin's bullet on July 5, 1969. The patchwork constitution could no longer secure his right to life.

Dr. Gibson Kamau Kuria identifies six principles upon which the KANU government has operated in effecting the multifarious amendments to the constitution since 1964. These are:

• A rejection of the principle on which democratic governments around the world are founded, namely that the state lacks the constitutional power to do certain things, whether it is acting through the executive, or the legislature or the judiciary;
• A refusal to accept the fact that in a democracy, the mandate which a winning political party obtains at a general election is one to rule strictly in accordance with the existing constitution as it is and leave it intact to any other political party which may defeat it at future elections. Since 1964 KANU has always changed the goal posts when the political game is in progress to stop the other team from scoring. These posts must be returned to their original places and be secured permanently;
• A perception of the constitution as a document which is changeable and is indeed changed whenever the retention of power demands so. This contrasts with the correct democratic principle of the constitution as an all time embodiment of noble values of the human being such as human equality and dignity, inviolability of the human person, and an all time charter of government in accordance with which every political party plays. KANU inherited its view of the constitution from the colonial government whose constitution changed throughout the colonial period as demands were made on it. According to this perception, the constitution is indeed the property of the political party which is in power and the citizen is a mere spectator of the political game. In these circumstances, to use Professor Ghai's expression, the constitution is a handmaiden of the party in power and is a means of retention of power;
• A rejection of the democratic principle of compromise founded on the belief that it is better that the other side win the general election than the constitution be broken or destroyed;
• A refusal to accept the truth which the late Judge Learned Hand stated in his famous essay titled “The Spirit of Liberty,” namely that there are limits to what the law can do. For instance, law can only facilitate economic development if there are good plans, resources and able people to implement them. Similarly, law can foster democratic development only if there is a good constitution and political will to foster it;
• A belief in KANU's infallibility or unique “wisdom.

These “KANU principles” have had a disastrous result. They have been manifested in corruption, bad governance, and the subjugation of the Legislative and Judiciary branches of government to the Executive. The judiciary, a co-ordinate branch of the government plays a crucial role in the interpretation of laws and the administration of justice. When the judiciary is suppressed and judicial officers abdicate their independence in the enforcement of law, the whole fabric of the rule of law and good governance breaks down. For the constitution to work, the judiciary must jealously play its rightful role of keeping the government in check under law. Our judges must learn and imbibe what their counterparts in the United States did a long time ago. Early in the birth of the American Nation, the Judiciary upheld the supremacy of the U.S. Constitution and its own pivotal role in the interpretation and enforcement of law. In a ruling given as early as 1793, Justice Patterson wrote:

The constitution of a state is stable and permanent, not to be worked upon by the temper of the times nor to rise and fall with the tide of events: notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the ranging of the waves. I take it to be a clear position: that if a legislative act oppugns a constitutional principle the former must give way, and be rejected on the score of repugnance. I hold it to a position equally clear and sound, that, in such case, it will be the duty of the court to adhere to the constitution, and to declare the act null and void. The constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges are to proceed. It is an important principle, which in the discussion of questions of the present kind, ought never to be lost sight of, that the judiciary in this country is not a subordinate, but co-ordinate branch of the government.” Vanhorne's Lessee v. Dorrance.

Conclusion

Why has not the granting of security of tenure to the Attorney General, Judges and Controller and Auditor General given independence and effectiveness to these offices? Is it the mode of appointment or the calibre of individuals appointed that has politically compromised these constitutional offices? Why has the public generally not upheld the benchmarks of merit, hard work and competence in public service? Why have integrity, honesty and truth not been consistently emphasized as necessary virtues for prominence in public and private sectors in Kenya? Why do chicanery, theft and cunning at times appear to be the hallmark of a successful political career? We posit these as important issues to be addressed if the rule of law is to prevail in our society.

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