14-27 | RE­VIEW

Nairobi Law Monthly - - Contents - MAR­I­LYN KAMURU

- What Uhuru’s Cab­i­net says about his char­ac­ter - Mafuguli-fi­ca­tion and Kenya’s cranky flywheel - Why mar­riage be­tween State and church must not hap­pen

By vi­o­lat­ing ex­press con­sti­tu­tional pro­vi­sions, the Pres­i­dent is at­tempt­ing to set him­self and his of­fice above the supreme law of the Re­pub­lic. He has dis­tin­guished him­self as both un­pa­tri­otic and as a bi­ased leader

“Lead­er­ship is a po­tent com­bi­na­tion of strat­egy and char­ac­ter. But if you must be with­out one, be with­out the strat­egy” – Nor­man Sch­warzkopf

In the re­cent Cab­i­net nom­i­na­tion and ap­point­ments, Kenyans wit­nessed an un­prece­dented fail­ure in lead­er­ship by Pres­i­dent Uhuru Keny­atta. De­spite ex­press con­sti­tu­tional pro­vi­sions that de­fine the size of Cab­i­net – Ar­ti­cle 152 and Ar­ti­cle 27(8) pro­vide a clear max­i­mum limit on the mem­bers of ei­ther gen­der – the Pres­i­dent wil­fully vi­o­lated the pro­vi­sions of Ar­ti­cle 27(8). The Pres­i­dent broke the law, and not just any law: the Con­sti­tu­tion.

One would ex­pect some out­cry from na­tional lead­ers but the protests were iso­lated and far apart, and the na­tion has largely moved on. Why isn’t this big deal? I sus­pect be­cause we are tak­ing about women’s rep­re­sen­ta­tion, so many peo­ple think it is a mi­nor thing; triv­ial and unim­por­tant. This is a mis­take. The vi­o­la­tion of Con­sti­tu­tional pro­vi­sions on gen­der in the ap­point­ment of Cab­i­net is a con­sti­tu­tional is­sue and a na­tional is­sue of paramount im­por­tance to all Kenyans. There is no rea­son or mit­i­ga­tion that is per­mis­si­ble when it comes to the Con­sti­tu­tion. Ei­ther the Pres­i­dent obeyed Ar­ti­cle 27(8) or he did not.

Ar­ti­cle 152 de­fines Cab­i­net as “the Pres­i­dent, Deputy Pres­i­dent, At­tor­ney-gen­eral and not less than four­teen and not more than twenty two Cab­i­net Sec­re­taries”. Pres­i­dent Keny­atta cre­ated 20 min­istries, and as such his Cab­i­net is com­posed of 23 peo­ple. Ar­ti­cle 27(8) states not more than ⅔rds of the mem­bers of an ap­pointive or elec­tive body shall be of the same gen­der. Two Thirds (67 per cent) of 23 is 15 and as such not more than 15 peo­ple in Cab­i­net can legally be of the same gen­der. Cur­rently Cab­i­net has 18 men and 5 women. The per­cent­age of men in Cab­i­net is 78pc far in ex­cess of the max­i­mum per­mis­si­ble 67pc.

The law is clear. The math is el­e­men­tary. It is ev­i­dent that the vi­o­la­tion of the Con­sti­tu­tion is de­lib­er­ate; as de­lib­er­ate and un­law­ful as an at­tempt to es­tab­lish 10 or 23 min­istries. What we are wit­ness­ing with the Pres­i­dent’s wil­ful vi­o­la­tion of the Con­sti­tu­tion is the re­fusal to be sub­ject to the Con­sti­tu­tion of Kenya. In­deed, by this ac­tion, the Pres­i­dent is at­tempt­ing to set him­self and his of­fice above the supreme law of the Re­pub­lic, which in it­self is un­law­ful and un­pa­tri­otic.


Per­haps peo­ple are un­able to see the is-

sue clearly be­cause of the political con­text. Let’s use the ex­am­ple of a com­pany with a Board of Di­rec­tors and ex­plore the same de­ci­sion mak­ing process within a busi­ness con­text. A board of di­rec­tors serves the com­pany and even if some di­rec­tors have con­stituen­cies, their de­ci­sions are sup­posed to be made for the over­all ben­e­fit of the com­pany, its share­hold­ers and stake­hold­ers. It would be im­proper for a di­rec­tor to make a de­ci­sion to the detri­ment of the com­pany or for their own per­sonal ben­e­fit. The re­quire­ments for di­rec­tors are con­tained in the law as well as the ar­ti­cles of in­cor­po­ra­tion, which pro­vide for the num­ber of di­rec­tors as well as the min­i­mum qual­i­fi­ca­tions of said di­rec­tors. In ad­di­tion, the ar­ti­cles limit the pow­ers of the in­di­vid­ual di­rec­tors as well as the Board. If, how­ever, the chair­man of the board pro­ceeds to act in vi­o­la­tion of the law and the ar­ti­cles, and ap­points di­rec­tors who do not meet the min­i­mum cri­te­ria as de­fined in the ar­ti­cles, the same ar­ti­cles by which s/he ex­er­cises her power to ap­point them, she acts ul­tra vires, out­side her le­gal au­thor­ity. There would be no ar­gu­ment that this ac­tion of the chair is as a re­sult un­eth­i­cal and il­le­gal. Fur­ther, the ul­tra vires act means that the re­sul­tant board is im­prop­erly con­sti­tuted. It there­fore fol­lows that any de­ci­sions made by the im­prop­erly con­sti­tuted board would not be bind­ing.

Erod­ing our foun­da­tions

This is the same stan­dard, if not a higher one, we should place on the Pres­i­dent. The seem­ingly mi­nor is­sue of an il­le­gal board ap­point­ment can cause sig­nif­i­cant dam­age to the abil­ity of the Board and the com­pany to op­er­ate legally. The fail­ure to abide by Ar­ti­cle 27(8) in ap­point­ing Cab­i­net is not a women’s is­sue. It has sig­nif­i­cant na­tional and in­ter­na­tional ram­i­fi­ca­tions. Ac­tions that are con­trary to the Con­sti­tu­tion have al­ready been de­fined as in­valid by the Con­sti­tu­tion Ar­ti­cle 2(4). Pres­i­dent Keny­atta is there­fore jeop­ar­dis­ing the de­vel­op­ment agenda of the en­tire na­tion when he vi­o­lates the Con­sti­tu­tion and pre­sides over an un­law­ful Cab­i­net.

Kenyans need to be alarmed be­cause when we are silent in the face of con­sti­tu­tional vi­o­la­tions, we are erod­ing the foun­da­tions for our so­cial and eco­nomic de­vel­op­ment. There will be no sus­tain­able de­vel­op­ment with­out ad­her­ence to the rule of law. If ob­ser­vance of the law is based on political or so­cio-eco­nomic sta­tus, then we will be ruled by whims and the vast ma­jor­ity of us will be dis­ad­van­taged by this new con­sti­tu­tional or­der.

As cit­i­zens we must chal­lenge un­con­sti­tu­tional ac­tions on both le­gal and moral grounds. The le­gal ar­gu­ment is clear, the Con­sti­tu­tion is non-ne­go­tiable. Of course, we can amend the Con­sti­tu­tion to re­move the re­quire­ments for gen­der equal­ity but as long as they ex­ist, then any le­git­i­mate leader must abide by them. As cit­i­zens, our chal­lenge to il­le­gal­ity should be driven by two things: Pa­tri­o­tism, which I de­fine as be­lief and ad­her­ence to the sem­i­nal doc­u­ment of Kenya the Con­sti­tu­tion 2010, and self-in­ter­est. When we pro­tect the Con­sti­tu­tion, as is our re­spon­si­bil­ity un­der Ar­ti­cle 3, we are safe­guard­ing our own in­ter­ests as well as those of oth­ers.


Re­sist il­le­git­i­mate lead­er­ship

I find the Pres­i­dent’s ac­tions par­tic­u­larly ob­jec­tion­able since they im­plic­itly as­sert that women are not as able lead­ers and as a class of cit­i­zens whose pri­mary role is to fol­low. But un­der­ly­ing the ex­clu­sion of women in Cab­i­net, the big­ger is­sue with the Pres­i­dent’s ap­point­ments is that he is un­will­ing to see him­self as also a ci­ti­zen. By act­ing out­side the Con­sti­tu­tion and re­fus­ing to ex­er­cise au­thor­ity within its lim­its, he is as­sert­ing him­self above the peo­ple of Kenya, to whom all sov­er­eign power be­longs, cre­at­ing a new class of ci­ti­zen. More than a fail­ure of lead­er­ship, the Pres­i­dent’s ac­tions de­fine him as an il­le­git­i­mate leader.

As cit­i­zens we have a moral obli­ga­tion to re­sist il­le­git­i­mate lead­er­ship. What are

the im­pli­ca­tions if we do not? There are at least three that should be of sig­nif­i­cant con­cern. First, we es­tab­lish prece­dent for the vi­o­la­tion of the Con­sti­tu­tion by those in power/au­thor­ity. This in turn creates an in­cen­tive to ac­quire au­thor­ity by any means nec­es­sary since it gives you un­lim­ited power. As we ap­proach elec­tions, we are al­ready start­ing to see signs of this win at all costs po­si­tion­ing from both Ju­bilee and Cord. When we al­low the Con­sti­tu­tion to be vi­o­lated and se­lec­tively ap­plied, we open a Pandora’s Box. We al­low all cit­i­zens to choose what laws to fol­low and which ones to ig­nore. I don’t be­lieve this was the Pres­i­dent’s in­ten­tion; he doesn’t think reg­u­lar Kenyan cit­i­zens should have a choice about which laws to fol­low or not, he thinks that that pre­rog­a­tive is his and his alone. That is a de­fi­ciency of char­ac­ter that should con­cern us in a Pres­i­dent. It is both legally and morally un­sound.

Bro­ken his prom­ises

Se­cond, we de­fine our­selves as out­side the Com­mon­wealth of Na­tions. The Pres­i­dent spent much of 2015 boast­ing about the Kenya Con­sti­tu­tion’s pro­tec­tions of women and promis­ing to safe­guard them from his speech at the Women in Par­lia­ment Con­fer­ence in March 2015 to the Global lead­ers Meet­ing on Gen­der in Septem­ber 2015. How­ever, when he had an op­por­tu­nity to demon­strate his com­mit­ment he acted con­trary to the Con­sti­tu­tion, his cam­paign prom­ises as cap­tured in the Ju­bilee Man­i­festo and his pro­nounce­ments on the global stage.

To put this is­sue into broader per­spec­tive, Kenya is last in the EAC in terms of women’s political rep­re­sen­ta­tion. Our neigh­bour Rwanda leads the world. Women’s equal­ity and lead­er­ship is no longer a for­eign western idea, it is an African re­al­ity. When we chose to dis­re­gard laws on gen­der equal­ity and deny women lead­er­ship, we are choos­ing to look back to the 19th Cen­tury and be­yond and deny­ing the re­al­i­ties of the 21st Cen­tury. This is the cen­tury we need re­alise Africa’s la­tent po­ten­tial and pos­si­bil­i­ties, but Kenya will be left be­hind if our lead­er­ship con­tin­ues to de­fine it­self out­side of the Con­sti­tu­tion and out of step with the global re­al­i­ties.

Fi­nally, and most dan­ger­ous, we re­verse the gains from the post 2007-8 pe­riod where we chose as a na­tion to seek to cre­ate lim­i­ta­tions of power on au­thor­ity for our col­lec­tive good and con­firmed our com­mit­ment through en­act­ment and pro­mul­ga­tion of the Con­sti­tu­tion of Kenya 2010. In a nut­shell, none of the con­se­quences of Pres­i­dent Keny­atta’s vi­o­la­tion of the Con­sti­tu­tion are good for the cit­i­zens or for the na­tion. Kenyans must refuse to un­ravel the in­tri­cate tapestry that binds us as a na­tion: the Con­sti­tu­tion of Kenya 2010. We must guard firmly against any and all vi­o­la­tions of the Con­sti­tu­tion, in­clud­ing and es­pe­cially when th­ese vi­o­la­tions are per­pe­trated by the Pres­i­dency. When the Pres­i­dent took his oath of of­fice, he ac­cepted to be bound by the Con­sti­tu­tion; be­yond the law, he has a moral and eth­i­cal duty to keep his word.

At last year’s Mashu­jaa Day Speech, the Pres­i­dent spoke about pa­tri­o­tism and I agree that this is some­thing we must work harder to nur­ture and pro­mote, but the Pres­i­dent must be re­minded he does not de­fine pa­tri­o­tism.

The high­est demon­stra­tion of pa­tri­o­tism is re­spect for the Con­sti­tu­tion, in­clud­ing our na­tional val­ues and prin­ci­ples which are pro­vided in Ar­ti­cle 10. Keny­atta should heed his own ad­vice. We are wait­ing to see him demon­strate the pa­tri­otic, char­ac­ter driven lead­er­ship that Kenya de­serves and it starts with strict ad­her­ence to the Con­sti­tu­tion.

Writer is a lawyer and en­tre­pre­neur


Pres­i­dent Uhuru with his first Cab­i­net.

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