constitutional morality-the kenyan context
TRANSCRIPT
THE CATHOLIC UNIVERSITY OF EASTERN AFRICA
FACULTY OF LAW
NAME: ERIC MATATA
REG NO: 1019785
A DISSERTATION PRESENTED TO THE FACULTY OF LAW IN PARTIALFULFILMENT OF THE REQUREMENTS FOR A BACHELORS DEGREE IN LAW
TOPIC: CONSTITUTIONAL MORALITY- THE KENYAN CONTEXT
SUPERVISOR: MS. NJERI KANG’ETHE
ABSTRACT
If indeed constitutions are as basic and important as they areclaimed to be, it then follows that they ought to be obeyed, respected, upheld and defended. That is the substance of constitutional morality. On the other hand acts contrary to the letter and spirit of the constitution fall under the broad heading of constitutional immorality. This paper examines in detail the concept of constitutional morality. The paper in general supports the obedience, upholdment, respect and defence of the constitution.
TABLE OF CONTENTS
Chapter 1- The Introductory chapter
1.0- Introduction
1.1-Background
1.2 - Problem statement
1.3 - Objectives of the study
1.4 - Hypothesis
1.5 - Research questions
1.6 - Significance of the research
1.8 - Limitations of the study
Chapter 2 -Law and Literature review
2.0 – Law review
2.1 – Literature review
Chapter 3- The concept of constitutional morality
3.1 – What really is constitutional morality?
3.2 – Distinction between constitutional morality and popular/social morality
3.2 – The subjects and scope of constitutional morality
3.3 – Elements of constitutional morality
Chapter4- Constitutional morality in relation to other constitutional concepts
4.1 – Constitutional morality and constitutionalism
4.2 – Constitutional morality and the separation of powers
Chapter 5- Constitutional immorality and its manifestation, forms and consequences
5.1- Definition of constitutional immorality
5.2- Constitutional immorality and civil disobedience
5.3- Outright defiance/violation
5.4- Abrogation/Suspension of State Constitutions
5.5- Revolution
5.6- Personal [political] interest at the expense of constitutions
Chapter 6- Conclusion and Recommendations
6.1 – Conclusion
6.2 – Recommendations
7.0- Bibliography
CHAPTER ONE
THE INTRODUCTORY CHAPTER
1.0 INTRODUCTION
Any constitution, be it written or unwritten, presupposes obedience to it- compliance with its provisions. Born out of the social contract, the constitution holds a pride of place in any legal system and all parties to the contract must strictly adhereto it if it is to fulfill its role as a tool of social engineering.
This is true not only as regards the substance and procedures of the constitution but also the rest of the constitutional order
including constitutional pronouncements by courts and adherence to constitutional concepts.
At the heart of the complete implementation and ultimate success of a constitution is constitutional morality-that conducts necessary for the success of any constitution.
1.1 BACKGROUND
A constitution can be defined as a set of agreed rules that govern a country or a state.
Bolingbroke defines a constitution as ‘that assemblage of laws ,institutions, customs, derived from certain fixed principles of reason that compose the general system according towhich a community hath agreed to be governed.’1 A constitution may be written or unwritten. The fundamental constitutional concepts include;
A] The rule of law
B] Separation of powers
C] Supremacy of the constitution
RULE OF LAW
The concept of the rule of law is often attributed to AV Dicey. It is a tripartite concept. First, it entails that no man can be lawfully made to suffer in body or goods except for a distinct
1 Bolingbroke. A dissertation upon parties(1733)quoted in wade and Bradley p4
breach of law.2 In the second sense the concept entails that no man is above the law.3
In the third sense it postulates that rights are by courts4
SEPARATION OF POWERS
It is a doctrine that prescribes the appropriate allocation of powers and the limits of power to differing institutions. In any state, three essential bodies exist;
1] The legislature
2] The executive
3] The judiciary
It is the relationship between these bodies that must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be, ideally, a clear demarcation of personnel and functions between the legislature, executive and the judiciary so as to ensure none has excessive power and that there is a system of checks and balances in place between the institutions.5
SUPREMACY OF THE CONSTITUTION
This principle presupposes a hierarchy of norms, which scheme reserves for the written constitution a pride of place. In this
2 Dicey, Law of the constitution,p4
3 Ibid
4 Ibid[in our jurisdiction rights appear to result from the general principles of the constitution]
5 Marshall, Distinctions between the monarch and the crown,1971 p[17-24]
kind of set up the constitution is the most important law in the legal system and ranks over and above all other legislation. Thisprinciple with regard to written constitutions can be traced backto the case of Marbury vs Madison.6 In Kenya this principle is articulated by the constitution and the judicature act.7
Consequently if any other law is inconsistent with it, that other law is void to the extent of its inconsistency.8
The kelsenian and the social contract theories are plausible explanations for this purpose.
MORALITY
The Macmillan English dictionary defines morality as;
1. The quality of being in accord with standards of right or goodconduct
2. A system of ideas of right or good conduct
3. The rules of right conduct
The world English dictionary defines morality as ‘a system of moral principles.’
1.2 PROBLEM STATEMENT
Many do not recognize the crucial need to fully adhere to a given constitutional dispensation and the fatality of non-
6 5 us [1 crunch] (1803)
7 Chapter 8 laws of Kenya
8 Article 2(4) of the Constitution of Kenya 2010
conformity to the same, lest the constitution becomes a mere document to be obeyed and disobeyed at will. The not identifiablelink between the success of a constitution and the habit of obeying it in the sense of acting in conformity with its dictatesis what motivates this research.
1.3 OBJECTIVES OF THE STUDY
This research endeavors to address the following issues:
1. The concept of constitutional morality
2. Constitutional morality in relation to various constitutional concepts.
3. The issue of constitutional immorality and its manifestation
4. Whether constitutional morality can be established as a recognized constitutional concept.
1.4 HYPOTHESIS
1. Constitutional morality is crucial to realizing the success and befits of any constitution.
2. A constitution in a constitutional dispensation characterized by rampant/constant constitutional immorality is bound to fail.
3. Constitutional morality is vital for stability of the state
4. Constitutional morality is central to modern constitutions.
1.5 RESEARCH QUESTIONS
1. What is constitutional morality?
2. How can constitutional morality be understood in relation to the concept of constitutionalism?
3. How can constitutional morality be understood in relation to The Separation of Powers?
4. What is constitutional Immorality?
5. How can constitutional morality be upheld and preserved?
1.6 SIGNIFICANCE OF THE RESEARCH
The contribution of this research is that it helps us to realize and appreciate the importance of ‘obeying the constitution’-in the broadest sense of the word.
It helps us in identifying the link between conformity/obedience to the constitution and the constitutional dispensation, and the imminent success of the constitution-the achievement/realization of that purpose for which the constitution was made.
1.7 RESEARCH METHODOLOGY
The methodology to be used includes identification, retrieval and analysis of materials. Explanatory, descriptive and comparative methods will be applied to enable the objectives of this study to be accomplished.
Sources will include but will not be limited to;
1. Journals and articles
2. The constitution of Kenya 2010
3. Text books
4. Online sources
5. Case law
1.8 LIMITATIONS OF THE STUDY
The research will cover the concept of constitutional morality generally, but will concentrate on its application and reflectionin the Kenyan context. The study will not include constitutional morality as reflected in every jurisdiction.
CHAPTER TWO
LAW AND LITERATURE REVIEW
2.0 LAW REVIEW
> The constitution of Kenya: This is the supreme law in Kenya. It has the force of law in Kenya and is not subject to challenge before any court or law. The constitution outlines government structure, has put in place government institutions and prescribes the functions of each. It distributes state power and prescribes the limits thereto. It provides for a devolved form of government, that is, a national government and county governments. It provides for citizenship and the relationship between the citizens and the state. More importantly it has a comprehensive bill of rights.
2.1 LITERATURE REVIEW
Grote understood constitutional morality to refer to the substantive content of the constitution. To be governed by constitutional morality is, on this view, is to be governed by the substantive moral entailment any constitution carries. To himtherefore, constitutional morality is the morality of a constitution. This takes into account principles such as equality.9
Ronald Dworkin in his article10 points out that:
9 George Grote ‘The history of Greece’, ‘Routlege’ London [2000]p8
10 Ronald Dworking ‘The moral reading of the constitution’ 1996 Issue, March 21
‘There is a particular way of reading and enforcing a constitution, which he calls the moral reading. Most contemporaryconstitutions declare individual rights against the government invery broad and abstract language thus the moral reading presupposes that we all- judges, lawyers, citizens- interpret andapply the abstract clauses on the understanding that they invoke moral principles about political decency and justice.’
He gives an example, that if some constitutional issue arises, for instance if a constitution that condemns censorship permits laws against pornography, people who form an opinion must decide how an abstract moral principle is best understood. They must decide whether the true ground of the moral principle that condemns censorship, in the form in which the principle has been incorporated into law, extends to the case of pornography.
The moral reading therefore brings political morality into the heart of constitutional law. However, Dworkin points to the limitation that political morality is uncertain and controversial, so any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authoritative. There is also the risk of the person with the last interpretation imposing their moral convictions on the rest of the citizenry.
Dworkin makes it clear that there is nothing revolutionary about the moral reading in practice. So far as lawyers and judges follow the coherent strategy of interpreting the constitution at all, they already use the moral reading.
Mathew Krammer, in his book11 states that the central topic underthe title is investigating the relationship between law and morality, ways in which they interact and some of the many ways in which they remain disjoined.
11 Where Laws and Morals meet [1996]
Inclusivism, Incorporationism and Exclusivism
Inclusive legal positivism
Consists in the following thesis: That a norm’s consistency with some or all the requirements of morality is a pre-condition for the norm’s status as law in a given jurisdiction, that this pre-condition can be imposed as a threshold test under the rules of recognition in any particular legal regime. Inclusive legal positivism is therefore inclusive as it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law.
Incorporationsm
States that a norm’s correctness as a moral principle is a sufficient condition for its status as a legal norm in this or that jurisdiction. An incorporationist theory maintains that moral principles are indeed legal norms. When officials do regularly engage in the practice of treating moral soundness or norms as a sufficient condition for the norm’s legal authoritativeness, they incorporate moral principles into the lawof their system of government.
Exclusivism
Exclusive legal positivism is opposed to both inclusive legal positivism and incorporationism. These exclusive positivists maintain that every nature of law is inconsistent both with the role or moral principles as legal norms and with their criteria for validating legal norms.
CHAPTER THREE
THE CONCEPT OF CONSTITUTIONAL MORALITY
3.1 WHAT REALLY IS CONSTITUTIONAL MORALITY?
To begin with, it is essential to point out the fact that thereis no general or objective agreement as to what the term constitutional morality refers to. The words ‘constitution’ and ‘morality’ are totally distinct and by the same virtue have completely different meanings. These terms have been earlier defined but a different definition of the same terms could be worthwhile.
In its broadest sense, a constitution can be defined as ‘a bodyof rules which regulate the system of government within a state.’12
In his five constitutions Finner defined a constitution as ‘Codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of the government, and define the relationship between them and the public.13
The Oxford English Dictionary defines ‘morality’ as ‘principlesconcerning right and wrong, or good or bad behavior, or the degree to which something is right or wrong, good or bad, etc, according to some moral principles.
The word ‘Constitutional morality has been understood differently by different writers who generally seem to agree thatconstitutional morality in the broadest sense refers to obedience to the constitution and the rest of the constitutional order, and which conduct is crucial for the realization of the fruits of any constitution.
12 Neil Paperworth, Constitutional and administrative law,(4th Ed) p3
13 Ibid,p4
Ambedkar says that constitutional morality refers to the conventions and protocols that govern decision making where the constitution vests discretionary power or is silent.14
Grote defined constitutional morality as ‘a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms ,yet combined with the habit of open speech, of action subject to definite legal control, and unrestrained censure of those very authoritiesas to all their public acts combined to/with a public confidence.15
Mina Scalia drives the point home by her definition thus:
‘Constitutional morality means adherence to the core principles of the constitutional order…thus the scope of the definition of constitutional morality is not limited to certain constitutional provisions literally but vast enough to ensure the ultimate aim of a constitution, a socio-juridical scenario providing an opportunity to unfold the full personhood of every citizen for whom and by whom the constitution exists.16
The above definition hits the nail on the head, as it is essentially what this course is concerned with. To the above it can thus be added that any departure from a constitutional provision or any act contrary to the prevailing constitutional order or a departure from the spirit of the constitution [if contemplated by the constitution or otherwise established] amounts to constitutional immorality.
3.2 DISTINCTION OF CONSTITUTIONAL MORALITY FROM SOCIAL/POPULAR MORALITY
14 Constituent assembly debates 1989,vii,28
15 George Grote, The History of Greece, ‘Routledge’ VI
16 Minu Elizabeth Scalia[www.legal serviceindia.com/1780/judicial values.html
For avoidance of doubt, constitutional morality is not, and should not be confused with other forms of morality. Social morality can be simply defined as ‘That morality that has its roots in social values. Therefore one distinction between the twoforms of morality is that constitutional morality is based on constitutional values whereas social morality is based on, or originates from, social values.
In the case of S.Kushboo vs kraniammal and another17 it was stated thus:
‘Constitutional morality is no set of theological convictions orhabits; it does not explicitly demand any conception of the humangood beyond the recognition of the duty to uphold the constitution. It is not some high virtue of the saint, but it is an essential value for governments to survive. Those who hold office must recognize that they have a duty to recognize and uphold and follow the mechanisms laid out in the constitution.’
The very importance of constitutional morality having been highlighted in the above case, if follows that constitutional morality must override societal or public morality.
For instance it may be asked, how far can the state go to take action which may be deemed to curtail a certain fundamental rightor freedom, say the right to privacy, in the name of securing public morality?
In Shuresh Kumar Koushal and Another vs Naiz foundation and others18, the issue was whether the state could curtail same sex private conduct between consenting adults on the ground of morals. The court Held that:
17 Cr app 6129 of 2012
18 Civil appeal No.15436 of 2013
‘Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of fundamental rights under the constitution. Popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of morality that can pass the test of compelling state interest, it must be a constitutional morality and not public morality…constitutional morality must outweigh theargument of public morality, even if it be the majoritarian view.’
Thus even if a vice that is considered socio-morally wrong, that is, it is against public morality and considered by the majority as morally wrong, if that vice be protected or is proved to be protected by the constitution, the protection extended by the constitution must outweigh the argument of the said vice being against public morality.
The point is that the constitution must be obeyed at all times even if its provisions go contrary to public morality.
3.3 TO WHOM DOES THE CONCEPT OF CONSTITUTIOANAL MORALITY APPLY?[SCOPE/SUBJECTS]
Looking at the social contract under which cluster falls the ideas of John Locke, Thomas Hobbes and others19, it is the excesses of an initial primitive society operating without any form of common administration that gave rise to modern government. In the absence of coercive governance structures men conducted business under the dictates of their own unlimited natural instincts and did not have to conform to any organized system of rules imposed by any authority- it was survival for thefittest. This sad state of affairs necessitated the civil society19 See, Huntington Cairns, Legal Philosophy from Plato to Hegel(Paperbacks
edition) 1967
under organized and coercive government. Government thus becomes a necessary compromise and the constitution arguably the agreement or contract that gives rise to it. Thus the constitution is a contract binding the government and its subjects. It can be inferred from the very existence of the contract that the parties must adhere. The case being that of theconstitution in our case, the main parties are the state and the citizenry.
The state as a party can be further sub-divided to:
>The Executive: In most constitutional orders the executive is mainly charged with implementing decisions. In Kenya executive authority is vested on the president, the deputy president and the cabinet.20
The Constitution of Kenya directly contemplates morality to it on the art of the executive as it stipulates that that same authority derives from the people of Kenya and shall be exercisedin accordance with this constitution.21 The emphasis upon the power being exercised only in accordance with the constitution implies its binding power and consequently implies obedience.
Further, the constitution directly imposes on the head of the executive branch, the president, the duty to respect, uphold and safeguard the constitution.22 In this regard the constitution uses mandatory language and thus the president has no discretion or choice other than to respect, uphold and safeguard the constitution. The president is the fore central to constitutionalmorality and is not only a subject but has been imposed by Article 131(2)(a) of the constitution as the guardian thereof. The president’s guardianship role in the constitutional order has
20 Article 130 of the Constitution of Kenya
21 Article 129(1) of the Constitution of Kenya
22 Article 131(2)(a) of the Constitution of Kenya
further been expounded to ensuring the protection of human rightsand fundamental freedoms and the rule of law.23
The members of the executive unequivocally pledge to be constitutionally moral when taking the oath or solemn affirmationof allegiance while taking office. The president and their deputyswear thus:
‘…in full realization of the high calling I assume as president/acting president/deputy president of the republic of Kenya do swear/solemnly affirm that I will be faithful and bear true allegiance to the republic of Kenya, that I will obey, preserve, protect and defend this constitution of Kenya, as by law established, and all other laws of the republic…’24
The above can be dubbed an oath to remain constitutionally moral. It follows that any act from those who swear the above that is inconsistent with the oath or solemn affirmation is constitutionally immoral.
The constitution of Kenya further contemplates sanctions upon the executive for gross violation of its provisions. The constitution contemplates a gross violation of its provision or any other law as a ground for impeachment of the president25 and the deputy president26 and as a ground for dismissal of a cabinetsecretary.27
It is worth noting that the Constitution does not only address the issue of compliance to it alone, but any other law as well. This points to the rest of the constitutional order, obviously as
23 Article 131(2)(e) of the Constitution of Kenya
24 Third Schedule to the Constitution of Kenya
25 Article 45(1)(a) of the Constitution of Kenya
26 Article 150(1)(b)(i) of the Constitution of Kenya
27 Article 152 (6)(a) of the Constitution of Kenya
dictated by the constitution, as important in the issue constitutional morality. It would indeed make no sense if one were to say they would comply with the constitution but will not comply with a certain law- unless of course the law has been declared unconstitutional by a court of law [in Kenya] in line with the constitution’s own wording-That any law, including customary law, that is inconsistent with it is void to the extentof its inconsistency and any act or omission in contravention of it is invalid.28
Thus, the threshold for the rest of the constitutional order isconsistency with the constitution. Compliance to the rest of the constitutional order has its roots in the constitution and thoughboth can be separately viewed, they cannot be wholly divorced.
>The Legislature: In Kenya legislative authority is derived from thepeople and, at the national level, is vested in and exercised by parliament.29
The question then goes-is parliament expressly bound to be constitutionally moral? Does it have an express duty to recognizethe duty to uphold the constitution and to abide by it?
Indeed Article 94(4) of the constitution of Kenya declares that parliament shall protect this constitution and promote the democratic governance of the republic. The word ‘protect’ simply means ‘to defend or guard from attack, invasion etc or to foster or shield from infringement. Therefore as used in the constitution the word is inclusive of conduct necessary to preserve and ensure the well functioning of the constitution.
28 Article 2(4) of the Constitution of Kenya
29 Ibid Article 94(1) of the Constitution of Kenya
Also, a person is eligible for election as a member of parliament if if the person satisfies any educational, moral and ethical requirements prescribed by the constitution and is disqualified from being elected as a member of parliament if the person is found, in accordance with any law, to have misused or abused a state office or public office or in any way have contravened chapter six of the constitution.30
It can be therefore stated without doubt that any argument thatthe constitution does not contemplate morality to it with regard to the legislature must fail.
>The Judiciary: The judiciary as an organ is mainly charged with settling disputes. It is the custodian of the law, including the constitution itself. In this regard the role of the judiciary in preserving and upholding constitutional morality is not only general, but special in nature and shall be re-visited. One of the principles that guide that guide courts and tribunals is the protection and promotion of the purposes and principles of the constitution.31
>State Organs, State and Public Officers: The constitution ofKenya declares itself the supreme law of the republic and binds all persons and all state organs at both levels of government32and that no person may claim or exercise state authority except as authorized under this constitution.
In this respect the constitution sets the threshold for the morality it requires of state officers. It provides that
30 Article 99(2)(h) of the Constitution of Kenya
31 Article 159(2)(e) of the Constitution of Kenya
32 Article 2 of the Constitution of Kenya
authority assigned to a public officer is a public trust to be exercised in a manner that:
1] Is consistent with the purpose and objects of the constitution
2] Demonstrates respect for the people
3] Brings honor to the nation and dignity to the office
4] Promotes public confidence in the integrity of the office and vests in the state officer the responsibility to serve the people rather than the power to rule them.33
The kind of constitutional morality expected from state officers is further explicitly outlined in chapter six of the constitution.
>The Citizens: The second to last line of the preamble to the constitution of Kenya states that:
‘We the people of Kenya adopt, enact and give this constitution to ourselves and our future generations.’ As party to the constitution the citizens have the duty to ensure the constitution is a success and in this regard the constitution stipulates that every person has an obligation to respect, upholdand defend it.34
The very act or constituting a state implies respect and adherence to that same order and obviously, the agreement giving rise to it.
Indeed Emannuel Kant observed that the citizen of the state possesses three judicial attributes that inseparably belong to
33 Article 72(1) of the Constitution of Kenya
34 Article 3(1) of the Constitution of Kenya
him by right; the right to have to obey no other than that to which he has given consent and approval, the right to recognize no one as superior among the people in relation to himself, except in so far as such a one is a subject to his moral power toimpose obligations ,as that other power to impose obligations upon him, the right to owe his existence and continuance in society not to the arbitrary will of another, but to his own rights and powers as a member of the commonwealth, and consequently, the possession of a civil personality which cannot be represented by any other than himself.35
He further observed that the people constituted itself as a state by an original contract; by this act they gave up their external freedom in order to receive it immediately again as a member of a commonwealth. The individual, therefore, has abandoned his wild lawless freedom wholly, in order to find all his proper freedom again entire and undiminished, but in the formof a regulated order of dependence, that is, in a civil state regulated by laws of right reflected in the original contract.36What is understood from the phrase above is the idea of obedience to the original contract [the constitution] and formof laws is an act that demonstrates man’s abandonment of his lawless state. Our Constitution does not shy away from expressingits binding power upon the citizens as it stipulates that it is the supreme law of the republic and binds all persons and all state organs at both levels of government.37
The most plausible explanation for its binding power on citizens and consequently the requirement of obedience, allegiance and conformity to it is the citizen’s consent to be bound by it through the social contract which can be equated to
35 Joseph Atergeshimer,Legal Philosophy from Plato to Hegel,[1967] p451
36 Ibid, p443
37 Article 2(i) of the Constitution of Kenya
modern day referendum and promulgation of the constitution. Moreover, the citizen’s participation is considered when while drafting the constitution so as to take into account any of theirdesires, aspirations and wishes, as the constitution primarily outlines the relationship between the state and themselves as encompassed in Finner’s definition of the constitution.
3.4 ELEMENTS OF CONSTITUTIONAL MORALITY
From the different perspectives that constitutional morality hasbeen understood, certain elements can be pointed out as being core to constitutional morality. These elements are the pillars, upon which constitutional morality is erected,
Some of these elements are stand alone-and can even be viewed asseparate principles, like the principle of equality, but when viewed together the elements amount to what is in essence constitutional morality.
These elements are constitutional morality itself broken down. These elements ought to be understood in a deeper sense if constitutional morality is to be established as a separate constitutional concept, which this paper seeks.
In his writing38 Grote indicated that freedom and self restraint are central to constitutional morality. He says that constitutional morality emphasizes freedom and self restraint, thus freedom and self restraint are the first two elements of constitutional morality that we are going to address
38 George Grote, ‘The History of Greece’ Routledge, London[2000] p16
Further, to quote Grote39, ‘…core to constitutional morality isthe recognition of plurality in its deepest form …as it is the only way some degree of unanimity can be attained.’ This point leads us to not only the recognition of plurality, but recognition of plurality in its deepest form, as another element of constitutional morality. This is the third element that shall be addressed.
Grote further continues to say that the only way of non-violence revolution is amid this fact of difference is securing some degree of unanimity on a constitutional process, a form of mediation that can adjudicate differences. That is to say that constitutional morality requires submitting to the adjudicative contrivances that are central to any constitution. This points out to difference to process as the fourth element of constitutional morality to be addressed.
Kalpana in her book also pointed out that constitutional morality requires agreement and cooperation and the presumption that we are equal, that despite all differences we are part of a common deliberate enterprise.40There are two elements of constitutional morality to be derived from this point-one is agreement and cooperation, the other one is equality. They form our fifth and sixth elements respectively.
Thus, the elements of constitutional morality are;
1. Freedom
2. Self-Restraint
3. Recognition of pluralism in its deepest form
39 Ibid p19
40 Kalpana Kannaabiran-Tools of justice[Routlege,Taylor and Francis group,2011
4. Deference to process
5. Agreement and cooperation, and
6. Equality
1. FREEDOM
The world English dictionary defines freedom as the capacity to exercise choice, freewill. It is also defined as the power to determine action without restraint, or the exemption from external control, interference, regulation, etc.
Kant understood freedom as the capacity of a rational individualto make informed, uncoerced decisions. He understood it in the sense of government-citizen relationship to mean autonomy. He says that freedom on the sense of autonomy is used as the basis for determining responsibility and/accountability of one’s actions.41 Freedom implies that the relationship between the government and the people be one where either party has autonomy that is rightful to the exercise of their roles in the state. This is especially true as regards the citizens since government originates from the premise that government is not supposed to interfere with every aspect of the citizen’s life but should onlydo so when it is absolutely necessary, say for the public good.
Constitutional morality therefore does not contemplate a situation where the citizens do not have some degree of autonomy,where citizens cannot decide anything for themselves and are completely under the dictates of the government [sanctioned by the constitutional order]. In such constitutional orders where the citizens have no autonomy, violation of the constitution and laws is bound to be rampant, and the ultimate result is revolution.
41 Huntington Cairns, Legal philosophy from Plato to Hegel,1967
On the other hand the freedom granted to citizens must not be abused. For instance the freedom of expression is not to be invoked in insulting others. That is why in most instances certain freedoms would be curtailed justified by the public good or the need not to interfere with the rightful enjoyment of otherpeople’s rights.
It has also been observed that freedoms culminate or translate into rights, which are by definition entitlements embodied in claims, aspirations and desires.42 Thus for the achievement of constitutional morality the citizens must have some degree of autonomy, which freedom must be exercised within its confines. The most crucial of these freedoms is the freedom to decide who should rule them.
The constitution of Kenya guarantees the citizens a multitude of rights and fundamental freedoms.43The constitution further provides that a fundamental freedom in the bill of rights is not to be limited except by law, and then only to the extent that thelimitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the relevant factors.44 Freedom is central toconstitutional morality.
2. SELF RESTRAINT
The world English dictionary defines self restraint as restraint imposed on oneself. This definition is not satisfactory. However from a general understanding self restraint calls upon one to desist from acting aggressively or in a manner that, although
42 Def according to Neil Paerworth, ‘Constitutional and Administrative Law’ 4th
Ed
43 Chapter 4, of the Constitution of Kenya
44 Article 24(1) of the Constitution of Kenya
right, is excessive in itself. For instance if the government does an act that violates the constitution, it would be an absurdity if half of the citizenry took to the street to protest,violently, against this single act of government. The result of that would be that many citizens would lose their lives and property in the violent protests and government operation would be rendered impracticable.
On the other hand, if the citizens have restrained themselves and used other avenues to address the issue, if they had employedself restraint, the issue would perhaps have been solved amicablywithout negative impacts. Protests, of course, would come as a matter of last resort.
Government on the other hand is also obliged to refrain from arbitrary action and in particular from interfering with the citizen’s day to day life, with their rights the enjoyment thereof.
3. RECOGNITION OF PLURALISM IN ITS DEEPEST FORM
Richard in his writing puts it across that recognition of pluralism is recognition and affirmation of diversity within a political body which permits coexistence of different interests, convictions and lifestyles.45 He further indicates that pluralismtries to encourage members of society to accommodate their differences by avoiding extremism and engaging in bonafide dialogue.
This in the Kenyan context is relevant as it is a call to the different groups, be they ethnic, religious or otherwise, to engage in bonafide dialogue that can help foster peaceful coexistence between them. It is a call to the different groups toblend into one.
45 Richard T. Platham, Plurality and liberal democracy,2005 p6
Pluralism reflects balance of conflicting principles, views andideas.46 This is in essence the opposite of subordination of other’s ideas by one group. Pluralism does not require the strictadoption of one party’s principles, views and ideas but a balancethereof, conflicting though they may be. It concerns itself with balance and subordinating any single abstract principle for a plurality or realistic harmony of interests. Recognition of plurality in its deepest form brings a sense of inclusiveness andoneness which is central to obedience of a constitution that is supposed to govern different groups of people as one- as members of one nation.
4. DEFERENCE TO PROCESS
This is in essence following the laid out procedures for doing any act or solving a dispute. It entails submitting differences to the persons or bodies mandated to solve disputes. The processes outlined in solving those disputes must be followed if they are provided.
Deference to process is not limited to solving disputes. It applies to any laid down mechanisms in the constitution as well as other laws. For instance, if there is outlined a process of removing a cabinet secretary from office, the process must be adhered to- the cabinet secretary must only be removed through that process. Outright retaliation in lieu of deference to process is bound to breed anarchy, which is incompatible with constitutional morality. In fact, failure to defer to process is where the relevant procedures and institutions are in place and contemplated by the constitution is outright disobedience of the constitution and is indeed an outright manifestation of constitutional immorality. A Kenyan example would be Raila Odinga’s lack of deference to process after losing the 2007
46 Ibid, p16
general elections and instead calling for mass action which destabilized the country.
5. AGREEMENT AND COOPERATION
As per the world English dictionary to ‘agree’ means ‘to come to one opinion and mind.’ An agreement is defined as ‘the arrangement that is accepted by all parties to a transaction.’ Itis unanimity of opinion.
Cooperation is defined as ‘an act or instance of working togetherfor a common purpose or benefit, joint action.’ Any order governed by constitutional morality has to be driven by the spirit of agreement and cooperation. This implies consultation among the people, among the government and between the people andthe government, as agreement come s after consultation.
Cooperation requires the putting aside of selfish desires and a sense of oneness as it is a march towards a common purpose. Cooperation between the citizens and the government is needed forthe well functioning of the constitution.
6. EQUALITY
Equality is a state of affairs in which all people within a specific society or isolated group have the same legal status in certain respects. It includes equal obligations and opportunities.47
In his article Bryce James submits that equality requires the absence of discrimination especially legally enforced social class of caste boundaries and the absence of discrimination
47 Russel Blackland, The point of social equality, 2011 vol 49, p54
especially that motivated by an alienable part of person’s identity, for example gender, race, sex or tribe.48
Principles of equality and non discrimination can be traced in many constitutions, including our constitution of Kenya.49
CHAPTER FOUR
CONSTITUTIONAL MORALITY IN RELATION TO OTHERCONSTITUTIONAL CONCEPTS
48 Dryce James 898 ‘A popular Quarterly’ vol 56
49 Article 27(1) of the Constitution of Kenya
4.1 CONSTITUTIONAL MORALITY AND CONSTITUTIONALISM
Constitutionalism is basically the art of limiting government power. It entails commitment to a theory or organized power, which is the very idea of constitutions,
In contrast constitutional morality is concerned with obedience to the constitution and the constitutional order in general, observance of its letter and spirit and the pronunciations therefrom- the conduct necessary for the realization of that which the constitution was put in place for. To understand the
relationship between the two concepts, an understanding of the concepts separately is crucial.
On constitutionalism, the traditional function of state constitutions is to distribute power. Constitutions have been written to limit state power in the process yielding civil and political liberties to the citizenry. Indeed constitutions springfrom the belief in limited government.50
The main aim of the patriots was to set limits to the power whichthe ruler should be suffered to exercise over the community; and this limitation is what they meant by liberty: by obtaining a recognition of certain immunities, called political liberties or rights which it was to be regarded as a breach of duty in the ruler to infringe, and which, if he did infringe, specific resistance or general rebellion was to be held justifiable as observed by Bradley.
Scholars and philosophers have over the years prescribed constitutional structures considered conducive for human freedom,liberty and pursuit of happiness. Montesquieu for instance prescribed that;
‘Political liberty is to be found only where there is no abuseof power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go…to prevent this ,it is necessary form the nature of things that every power should be a checked on...’51
De smith on his part observed that the idea of constitutionalisminvolves the proposition that the exercise of government power shall be bound by rules, rules prescribing the procedure according to which legislative and executive acts are to be
50 Bradley Aw and Ewing, Constitutional and Administrative Law[Longman] p8
51 B de Montesqieu, The spirit of laws, Trans Niget, 1949, p4
performed and delimiting their permissible content. Constitutionalism becomes a living reality to the extent that those rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass there is significant room for the enjoyment of individual liberty.52 De Smith’s observation embraces various factors which are in reality concepts of constitutional morality-deference to process and freedom. That the relevant authorities defer to process at all times and the significance/ the issue of enjoyment of individual liberty which is not to be tampered with arbitrarily, at the discretion of power wielders.
Thus in this case the type of constitutional morality required is acting within one’s confines, within the powers prescribed andoutlined in the constitution.
For example, the legislature has power to make laws, but it would be against the principle of constitutionalism if the legislature were to make, say, arbitral laws meant to limit certain fundamental freedoms for the legislature’s own benefit and without just cause. As a principle parliament can make, amendand repeal any law. Thus, clearly, there is a discretion granted upon parliament in the making of laws and the result is that parliament can choose to make laws infringing on citizen’s rightsor meant to directly or indirectly grant themselves excessive power or laws that are simply incompatible with the will of the people and the bona fide exercise of legislative power. One wouldargue that such law, if it be in Kenya, would be unconstitutional, but that would not come automatically unless the law were challenged in a court of law and consequently declared unconstitutional by virtue of Article 2(4) of the Constitution, if it be found so. It is not guaranteed. It is
52 De Smith S,A(1964) The new commonwealth and its constitution,London,p106
therefore true that in the making of laws there is a discretionary power on the part of the legislators.
To this regard Q. Ambekar in defining constitutional morality said thus;
‘Constitutional morality refers to the protocols and conventions that govern decision making where the constitution vests discretionary power or is silent.53
Therefore in one sense the concept of constitutional morality isuseful in filling gaps which have not been filled or addressed through constitutionalism. The prescriptors of constitutional structures embracing constitutionalism envisaged a situation where there are well laid and spelt out mechanisms to ensure constitutionalism. It can therefore be asked, what happens in situations where provisions to curb abuse of discretionary power are not provided or are easily manipulable?
Ambedkar provides the answer as constitutional morality. The actions and the manner of carrying out such action to in such situation should be dictated by the desire to realize the end to which the constitution is a means. The conduct must be that whichgives effect to the spirit of the constitution. Constitutional morality as earlier pointed out is not limited to adhering to thewording of the constitution, but includes conduct that is necessary to ensure the constitution is a success. Constitutionalmorality seeks to fill the gaps not filled by constitutionalism, thus complementing it.
Adherence to constitutionalism as contemplated by the constitution is constitutional morality in itself, that is to say, it is an end in itself. Where mechanisms, processes and institutions have been set up to provide for constitutionalism itis a good thing, but it also possible that the same provisions on
53 Dr Q Ambedkar, in ‘The constitution and constituent assembly debates’ p174
constitutionalism can be disobeyed. A direct limit to a particular power or act could be ignored. Constitutional moralitytherefore comes in to call for such provisions, lest they be reduced to mere words. A culture of constitutional morality is therefore required in any constitutional dispensation.
Constitutional morality reinforces constitutionalism. The reverse is also true that lack of adherence to constitutionalism-to the process, mechanisms and institutions to that effect- is constitutional immorality.
Adherence to the concept of constitutionalism can be a means toan end, that is to say that constitutionalism is meant to ensure the smooth-running of government and basically to prevent excesses, which, when realized, unfolds into an order where every person in power acts as required and thus constitutional morality is achieved. When everyone acts within the limits imposed on the powers granted to them, they are in essence being constitutionally moral.
Constitutional morality is also central to written constitutionsas is constitutionalism. It would be a manifest absurdity if written constitutions would be mere documents to be obeyed and disobeyed at will, and would, as CJ Marshall put it in Marbury vs Madison54, ‘This would subvert the very foundation of all written constitutions and reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution…’, Thus constitutionalism which is in itself embodied in written constitutions, cannot be achieved if the samewritten constitutions are not given due regard and are reduced to documents to be obeyed and disobeyed at will. Constitutionalism will therefore depend on the requisite accord given to written constitutions.
54 5 US(1 Cranch)[1803]137
A culture of constitutional morality is likely to flourish wherethere is constitutionalism- where limits to government power are laid out and are in practice obeyed. Constitutionalism is usuallyembodied in various forms, the most evident being through the separation of powers, which doctrine shall be revisited later. Where functions and powers are clearly spelt out and/ or directlylimited, constitutionalism ensures. For instance the constitutionof Kenya clearly gives out the authority and functions of the president.55 It also gives the ways through which those powers may be exercised at various instances like during temporary incumbency. It would be constitutional immorality if the president were to dictate beyond his powers where such clear limits to his power are outlined.
Recently the phenomena of national human rights institutions has gained momentum ans is fast becoming an avenue for limiting state power and guaranteeing more liberties and rights to the citizenry. The United States High Commission (UNHCHR) has reckoned that;
‘It has therefore become increasingly apparent that the effective enjoyment of human rights calls for the establishment of national infrastructures for their protection and promotion.'
In Kenya there exists a Kenya Human Rights and Equality Commission which has been established to that effect. It is a fundamental check to government power and is crucial to constitutionalism. In a nutshell Kenya’s constitution contains what can be termed as minimum standards of constitutionalism...but are those very constraints obeyed? That is the question of constitutional morality.
55 Article 131 and 132 of the Constitution of Kenya
4.2 CONSTITUTIONAL MORALITY AND THE SEPARATION OF POWERS
The separation of powers is an important doctrine in constitutional law. The doctrine has been considered by many throughout the centuries.
Montesquieu for instance remarked that;
‘…there is no liberty if the power of judging is not separated from the legislative power and from executive power…all would be lost if the same man or the same body of principle men, rather nobles or of the people exercised the three powers; that of making laws, that of executing public resolutions and that of judging the crimes or the disputes of individuals’56
It is basically a concept which prescribes that in any form of government the judicial, legislative and executive powers must beseparated. In many jurisdictions57 and indeed in Kenya, the exercise of the aforementioned three powers is derived from the will of the people –their sovereign power to be precise, and which is to be exercised in accordance with the constitution.58 Sovereign power is the delegated both at national and county level to the three arms of government.59The constitution of Kenyadoes reflect the doctrine of separation of powers w each organ being independent.60
The question then arises- If the three organs are distinct and independent [meaning the whole of government is independent],who is supposed to ensure that the organs themselves adhere to
56 Huntington Cairns, Legal Philosophy from Plato to Hegel,1967
57 See for example the constitution of the South Africa
58 See Article 1(1) of The Constitution of Kenya
59 Article 1(3) of the Constitution of Kenya
60 Chapter 8 of the Constitution of Kenya the Legislature, Chapter 9 on the Executive and Chapter 10 on the Judiciary
the constitution and the laws in place? If power corrupts, is there a guarantee that without check the three organs will adhereto the notion that government itself ought to conform to the law,or to the rule of law principle that no one is above the law? Thequestion in light of constitutional morality is, would the government, without check, abide by the constitution and the restof the legal order? It is worth noting that the citizenry itself is so insufficient a check to the extent that most citizens are far removed from the inside activities of government and in any case, power gives one a higher hand
Thus the system of checks and balances saves the situation as it dictates that one power should be a check on the other. Montesquieu to the effect observed that;
‘…to prevent this abuse it is necessary from the nature of thingsthat one power should be a check on the other.’61
The effect or checks and balances is that a violation of the constitution, or an act or omission contrary thereto by one organ will be frowned at by the other organ(s) who will then act as a check to ensure that the situation is dealt with or corrected. It is true that many violations of the constitution byone or other organ have been brought to public or have been dealtwith by another of the three organs. A good example in Kenya was constitutionally the unprocedural and illegal appointment of Alnashir Visram as Chief Justice by then president Mwai Kibaki in2011.62The general public could have done little or nothing aboutit but it was parliament (through the opposition) that intervenedto oppose the appointment and consequently petitioned the court for nullification of the appointment.
Thus through the system of checks and balances [which is based on the separation of powers] constitutional morality has been 61 Huntington Cairns, Legal Philosophy from Plato to Hegel,1967
62 See Daily Nation newspaper of January 15 2011
maintained to some extent and constitutional immorality curbed. When one knows that a violation of the constitution will not be overlooked by someone else in power, they are bound to act according to the dictates thereof.
The doctrine of separation of powers is relevant to constitutional morality as far as the system of checks and balances is in place. Again the system of checks and balances is relevant to constitutional immorality to the extent that it curbs abuse of power in the form of violation, infringement and/or contravention of the constitution and the rest of the constitutional order.
The doctrine provides a sense of security that the constitution will be obeyed because someone who can do something about it is in watch. When violations do not occur constitutional morality prevails. When they do occur they are brought to light and dealt with or corrected and in so doing the constitution is thus safeguarded and its benefits realized.
CHAPTER FIVE
CONSTITUTIONAL IMMORALITY AND ITS MANIFESTSTIONS, FORMSAND CONSEQUENCES
5.1 DEFINITION OF CONSTITUTIONAL IMMORALITY
The Oxford English dictionary defines ‘immorality’ as the quality of not being in accord with standards of right or good conduct.’ A second definition is ‘An immoral act. There is however no general agreement as to the definition of constitutional immorality. It has been described as the opposite of constitutional morality.63
Based on the definition of immorality a definition of ‘constitutional immorality’, a definition can be formulated thus
63 Dr. Q Ambedkar, The Constituent Assembly Debate, p178
constitutional morality can be defined as ‘the failure to adhere to, or the contravention of the dictates of, or the standards setby the constitution. To that effect any act or omission in contravention of the constitution is, or can be termed constitutional immorality.
The definition alone is insufficient if one is to fully understand constitutional immorality and therefore a better look at the manifestation, forms and consequences of constitutional immorality is vital at this point.
5.2 CONSTITUTIONAL IMMORALITY AND CIVIL DISOBEDIENCE
To ‘disobey’ is ‘to refuse to do what a person, law or order tells you to do’ while ‘being disobedient’ is ‘failing or refusing to obey’64
Civil disobedience is the deliberate and public violation of the command of an authorized and accepted political superior on the ground that the decree is unjust ,immoral, unconstitutional, contrary to good, public policy, e.t.c.65 Therefore when an act of disobedience is not based on the aforementioned grounds, that is, immoral, unconstitutional, contrary to public good or public policy, the said act is not and cannot be termed an act of civil disobedience but rather it is an act against the law-an illegal act.
If an authority does an act or makes a decree that is prima facie against the constitution that would form sufficient basis for commission of an act or acts of civil disobedience in protestof the same. Thus constitutionally immoral acts are themselves a
64 Definition as per the Oxford English Dictionary
65 Rev Martin, Civil Disobedience,2012
cause of civil disobedience. And civil disobedience is a consequence of constitutional immorality. Other than being a consequence it is also a manifestation of constitutional immorality. This is because the act of civil disobedience is in itself an indication that something is wrong somewhere and needs to be addressed. When an act of civil disobedience takes pace it manifests that something is wrong somewhere and if that somethingbe an assault on the constitution, the civil disobedience will bea manifestation of constitutionally immoral act. Civil disobedience directed towards constitutional immorality would entail, for example, refusal to obey certain government demands for the purpose of influencing legislation, government policy or action characterized by employment of non-violent techniques coupled with non-resistance to consequent arrest and punishment on the ground that the said legislation, government policy or action is against or is an assault on the constitution. In any case the law is broken as a way of getting at the policy or command.-to somehow frustrate the government in order to get it to rectify or modify its acts or commands, in this case if they are against constitutional morality.
Thus civil disobedience comes into play when constitutional immorality is on the part of government. If a citizen or the citizenry engages in constitutional immorality the government hasno recourse to civil disobedience. It is a remedy only available to the citizen. Civil disobedience against or directed towards constitutional immorality is a good mechanism for preserving andupholding the constitution and preventing its assault. It is a recognition of the importance to respect, uphold and defend the constitution on the part of the citizenry which is a duty imposedon them by the constitution itself.66
It Should be noted that civil disobedience must be directed towards a specific law or act and not all laws or acts
66 Article 3(1) of the constitution of Kenya
generally. The citizen does not anticipate anarchy or intend thathis actions cause unrest. Civil disobedience takes a peaceful course, not a violent one. Also, the person engaging in civil disobedience does not disobey just merely out of self interest but In good faith for public good.67 The citizen should disobey the law publicly and on the condition that he/she is willing to take the consequences as regards punishment.68
Civil disobedience is different from a revolution [which shall be discussed later]. Of the two Louise writes that ‘civil disobedience is not to be confused with revolutionary action- An act can be of civil disobedience without being a revolutionary act…civil disobedience may have the more modest goal of frustrating specific laws or actions of specific governments thansay, replacing one system of government with another.69
Civil disobedience compels the government to correct the said constitutionally immoral act mostly for fear of what would happenshould more and more citizens join and take part in acts of civildisobedience. Of such danger Ambedkar observed that;
‘Constitutional morality is an indispensable condition of a government free and peaceable, since even powerful and obscinate minority may render the working of a free institution impracticable e without being strong enough to conquer ascendancefor themselves.70
5.3 OUTRIGHT DEFIANCE/ VIOLATION
67 Louis Michael Seidman, On Constitutional Disobedience,2012
68 Ibid
69 Rex Martin, Civil Disobedience,2012
70 Dr Q Ambedkar, Constitution and Constituent Assembly debates,p134
As per the Oxford English Dictionary to ‘defy’ is ‘to refuse to obey or show respect for someone in authority, a law, a rule, e.t.c, while to ‘violate’ is ‘to go against or to refuse to obey’. Both constitute direct acts of disobedience to the constitution, or direct omission or refusal to act in accordance with the constitution,
Outright violation or defiance of the constitution is the worst manifestation of constitutional immorality. Outright defiance as a form of constitutional immorality could be manifested in the following ways;
a) Procedural defiance/violation: This is where one fails to act or acts contrary to the procedures laid down by the constitution. The said act or omission to act in accordance with procedures could be on the part of the government or the citizens as they are all bound to follow the procedures laid down by the constitution.
b) Substantive defiance/violation: This is where one fails to act or acts contrary to the substantive requirements of the constitution. This could be, say, a direct violation of a right in bill of rights in the constitution. Again, substantive defiance could be on the part of the government or the citizenry as all are bound by the constitution.
c) Defiance of court orders: This in light of constitutional immorality entails directly disobeying a court’s decision where a constitutional matter has been decided by the courts. This could occur, for example when the court rules that an act is unconstitutional yet the person proceeds perform the act.
The effect of outright defiance/violation is that the constitution becomes a mere document to be obeyed and disobeyed at will. The constitution looses the very meaning and purpose for
which t was enacted. In fact outright violation of the constitution is a recipe for civil disobedience and even revolution.71
5.4 ABROGATION/SUSPENSION OF STATE CONSTITUTIONS
Abrogation /suspension of state constitutions is mostly witnessed when military coups take place and is a matter of general concern. It has also been observed that the ‘immidiate’reason offered for the vast majority in coups in Africa has been the failure of constitutional government and the desire to wipe the political and constitutional states clean.72
In cases where military coups have commenced with abrogation orsuspension of the constitution it may be asked, why only the constitution and not the rest of the legal order or even apart thereof? The most probable answer is the fear of not being able, or the unwillingness to abide by constitutional morality it what makes powers that take over through coups to abrogate from, or suspend the constitution while leaving intact the rest of the legal order which is largely favorable to them.
Most constitutions dictate that acts contrary to their provisions are unconstitutional and set various standards, that is, of fundamental rights and freedoms, leadership and integrity,e.t.c. Therefore abrogation or suspension of such provisions and standards in their entirety and without an interim provision for the same is a manifestation of constitutional immorality on the part of the authorities abrogating or suspending the constitution.71 Loius Michael Siedman, On Constitutional Disobedience,2012
72 Okoth Ogendo, Constitutions without Constitutionalism: Some reflections onAfrican political Paradox,’
If it is the constitutive part [that establishing the structures of leadership] alone that is suspended or abrogated from and the rest remains in force the situation could be understandable as the constitutive part can subsequently be amended. In fact Okoth observes that in such situations of abrogation or suspension the tendency to promulgate an instrumentvery similar to that abrogated from or suspended remains strong.73This also implies recognition by the abrogators/suspenders that a constitution is necessary for effective government, though they began by suspending one and promising another one.
Thus in essence constitutions are not suspended or abrogated from in order to make better ones[which could be made while the subsisting one is in force] but in order to give freedom to the abrogators/suspenders to do whatever they wish which would otherwise not be in line with a constitution. Absence of a constitution means absence of a standard against which laws and actions can be measured. It is the beginning of tyranny. It also means suspension of rights of the citizen. Thus constitutional immorality in such situations is advanced by of abrogation/suspension of state constitutions coupled with the promise of a better one –while an interim constitution [be it military or otherwise] would have filled the gap during such transition to another government, awaiting the promulgation of a new one or alternatively a new one could be enacted in accordancewith the provisions of the subsisting one.
When such abrogation/suspension occurs the citizens are the ones who suffer because the ruler has no confines and the bill of rights is gone with the suspended constitution. Unfortunately in most cases the citizen has no remedy but to await another constitution and to bear with the violations. A military not acting within the confines of a constitution is no joke.
73 Ibid,p 20
5.5 REVOLUTION
‘Revolution is defined as ‘the usually violent attempt by a people to end the rule of the government and start a new one.74 It is also defined as ‘an overthrow or repudiation and the thorough replacement of an established government or political system by the people governed.75A revolution is not to be confused with a coup which is, as per the Oxford English Dictionary ‘a sudden change of government that is illegal and often violent.’ A revolution is by the people of a state desirousof ending a government or political system and/or replacing the same with a new one.
Revolutions could be fuelled by one or more factors, among themviolation(s) of the constitution by government, that is, gross orconstant government action that is contrary to the constitution. Revolutions can thus be caused by, or can be a consequence of constitutional immorality. Gross violations of constitutions thathave led to revolution have involved violations on the rights of the citizens spelt out in the bill of rights,76or governments norliving to the expectations contemplated by the constitution.77
Thus constitutional immorality or failure to observe constitutional morality on part of government is sufficient basisfor a revolution. A revolution is worse than civil disobedience in that it involves violence-the ultimate aim being to end the rule of a government.
74 Theda Skolpoi, Social Revolution,1979
75 Gustave Li Bon, The Psychology of Revolution,2006
76 The American revolution of 1765-1783 in part fuelled by massive violation of rights by government
77 Such as not providing security or rampant corruption by the government
It is true that revolutions have led to positive outcomes such as grant of more liberal rights as was the case with the Americanand French revolutions and which have in turn been reflected in state constitutions. Revolutions also carry with them massive negative impacts as has been evidenced by the recent Libyan and Syrian revolutions in that sometimes a return to peaceful societybecome difficult.
If governments are to evade or avoid revolutions their only chances are by upholding, respecting, defending and adhering to the constitutions which in the first place brought them to power and which symbolize their agreement with the people. Abiding by the grundnorm is precedent to abiding by the rest of the laws as it is the constitution which dictates the rest of the legal order.
5.6 PERSONAL (POLITICAL) INTEREST AT THE EXPENSE OF THE CONSITUTION
Personal interest at the expense of a constitution is a form ofconstitutional immorality that needs to be addressed. These interests are usually in regard to ascendance to presidency (a quest for power) or retainance of presidency and power. Several examples of this form of constitutional immorality can be drawn from our jurisdiction;
First example; In 1982 the then President Moi made sure the constitution was amended to make Kenya a one party state,a decision influenced by his personal interest to retain the presidency. This was constitutional immorality the amendment was based Moi’s personal interest to retain power and did not at all reflect the wish or interest of the people
Second example; Recently Raila Odinga, Kenya’s former prime minister has been demanding for a constitutional referendum. At
close scrutiny the provisions sought to be amended are based on Raila’s personal interest to become president and are not for thebenefit of the people. This is especially true owing to the fact that he himself fully supported the current constitution in the 2010 referendum. His demands for the disbandment of the constitutional body responsible for administering elections [IEBC] are unwarranted and based on his subjective rather than objective beliefs.
Such direct and indirect assaults on the constitution based on personal interest are contrary to both the letter and spirit of the constitution. They are a display of constitutional immoralitywhether such assaults on the constitution are successful or not. These personal interests such as those of Moi and Raila cited as examples are against self- restraint, deference to process and agreement and cooperation which are essential elements of constitutional morality.
CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS
6.1 CONCLUSION
Constitutional morality is a concept meant to address subversion of the constitution. It is a concept that demands
obedience to the constitution and encourages its upholdment and defence. The concept itself is a means to ensuring that the gainsexpected to be brought about by the constitution are realized by a country or a state [both government and the people]. Lack of constitutional morality means that the gains expected to be realized by enactment of the constitution will not be realized, and the constitution remains a mere document to be complied with and departed from at will. The results of constitutional immorality is a mal-functioning government which is bound to failin its objectives and such constitution will fail in bringing about the very fruits and benefits it was intended to bring about. Constitutional morality is therefore vital for the functioning of the constitution and consequently government. Civil disobedience and revolution are some of the responses to constitutional immorality that may contribute to the failure of astate or a country.
The role of the judiciary is crucial and special if constitutional morality is to prevail. This is because in the first place, for the functioning of a constitutional order there must be a form of deference to a neutral arbiter, thus the judiciary.78 To this end the independence of the judiciary is important and necessary, and which is guaranteed in Kenya.79. This is to ensure impartiality and to enable the judges rule without fear or favor. The judiciary will thus be able to uphold and defend the constitution as required of it in the same constitution80 through decisions to that effect in constitutional and other matters. The judiciary is also a player in the system of checks and balances and is therefore expected toensure that constitutional morality prevails by checking on
78 Marshall, Distinction Between the Monarch and the Crown,3rd Ed, 1971
79 See Article160 of The Constitution of Kenya
80 Judges swear to uphold and defend the Constitution while taking oath of office as requires by The Third Schedule to the constitution of Kenya
violations by the other arms of government and ruling in favor ofthe constitution whenever a matter is brought before it.
In essence the judiciary is the central upholder and defender of the constitution. For instance it is the judiciary that declares rights and enforces them for the benefit of the people. In fact some rights and processes which are enshrined in the constitution of Kenya are as a result of judicial decisions. For example the right of an arrested person to be informed of his right to remain silent and the consequences of not doing so, to be informed of the reasons for arrest at the time of arrest81 areas a result or the court’s decision in Arizona vs Miranda.82 The power of judicial review which allows courts to declare laws unconstitutional and which makes all law inconsistent with the constitution void to the extent of the inconsistency83was as a result of the decision in the case of Marbury vs Madison.84 Therefore the special role of the judiciary extends further to shaping constitutions as has been demonstrated by the above cases.
It is the duty of every citizen to ensure that the constitutionis a success and everyone has a part to play by simply upholding constitutional morality and condemning and addressing constitutional immorality.
6.2 RECOMMENDATIONS
81 See Article 49(1) Of the Constitution of Kenya
82 348 US 436 [1966]
83 See Article 2(4) of the Constitution of the Constitution of Kenya
84 5 US(1 Cranch) 137 [1803]
>In order to ensure constitutional morality, sanctions should be put in the constitution to prevent its violation. The constitution itself should contain sanctions in form of penaltiesfor gross violation of its provisions. At present the constitution of Kenya contemplates impeachment of various personsholding office for gross violation of its provisions and nothing more.85 To ensure compliance with its provisions there should be included in the constitution penal sanctions for violations that apply to everyone, citizen or government, and not just a select few as is the case with impeachment.
>Governments should educate their citizens on the constitution sothat the citizens can understand what the constitution is all about and its importance. This way the citizens will be able to abide by the constitution as they are aware of its provisions andat the same time will be able to detect violation and defend it. If one does not know what the constitution provides he will not know when the constitution is violated even to his disadvantage, let alone abide by it. Civil education on the constitution is therefore necessary and must be encouraged provided by government.
>Since the constitution reflects the agreement, wishes and aspirations of the people at a particular time, it is only practicable and necessary that the constitution be reviewed periodically after a particular determined period to ensure t does not fall obsolete or irrelevant. Society keeps changing and constitutions should be able to reflect these changes in line with the people’s aspirations lest it falls obsolete.
Therefore it is recommended that the constitution be reviewed periodically after a fixed determined period, for example after every ten years.
85 See Impeachment of the president, Vice president and Governors at articles 145(a),150(b) and 181(1) of the Constitution of Kenya respectively
>More inclusive participation in constitution making should be encouraged as the people’s wishes are better captured that way. That way people will be at ease to respect that which they helpedformulate as opposed to a constitution made without or with little participation from members of the public. The people’s views should and must be expressed in, and reflected by the constitution.
States should also be encouraged to adapt autonomous constitutions which reflect the people’s cultures, nature, will, interests and aspirations other that ‘copy pasting’ constitutionsof other states when they need a new constitution, which practicedo not reflect the aforementioned factors with regard to the people or the state adapting it. For example, Kenya may not be encouraged to adapt a constitution that embraces homosexuality merely because it is a feature of ‘modern’ state constitutions. If the will and culture of the people of Kenya is not for homosexuality, Kenya’s constitution should not envisage the same.Constitutions must be home-based if they are to be easily complied with. This applies to other laws as well.
7.0 BIBLIOGRAPHY
1. The Constitution of Kenya 2010
2. David Pollarand, Neil and Davis, Constitutional and Administrative Law, [3rd Ed] 2001
3. Kalpana Kannabiran, Tools of justice, [Routlege Taylor and Francis Grp], 2011
4 . Huntington Cairns, Legal Philosophy from Plato to Hegel (paperbacks edition) 1967
5. Russel Blackland, The point of social equality, 2011, vol49
6. George Grote, The history of Greece Routlege London (2008)
7. Peter MJ, Constitutional and religious prejudices, 4th edition, 2002
8. Norman Redrich and John, Constitutional law, 4th edition, 2002
9. S.J Marshall, Distinctions between the monarch and the crown,3rd Ed, 1971
10. N.D Arora and SS Awasthy, Political theory, 2009
11. Peter Luslet, John Locke, Two Treatises of Government, 1963
12. Laski, Political thought in England-Locke to Bentham, 1961
13. Murray Hiller, State the Theories, 2001
14. Richard T. Platham, Plurality and Liberal Democracy, 2005
15. Louis Michael Siedman, On Constitutional Disobedience, 2012
16. Rex Martin, Civil Disobedience, 1990
17. Okoth Ogendo, Constitutions without constitutionalism: Reflections on the African Paradox, 2006
18. Theda Skolpoi, Social Revolution, 2006
19. Gustave Li Born, The psychology of revolution, 2006
20. Dr Q. Ambedkar,the constitution and constituent assembly debates, 2012