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Wednesday, April 3, 2013

the spirit


I’ve been spending a lot of time reading the constitution lately. This is because I only ever read it once back in 2010 (the copy I had was one of those that they printed out in the newspaper.) I wanted it to pass because I had been thinking a lot about national unity and symbols of it. The constitution we had before had been passed at the Second Lancaster House conference. The paws of the British were all over it a fact that can be gleaned from the place in which it was written. After this constitution was passed amendments ran amok all over it. The turn-cloak amendment introduced when Jaramogi wanted to switch parties. This is basically an amendment that stated that when one politician switches parties to a different one than the one they won a seat in parliament as a member of then they automatically lose that seat. The age of presidency amendment moving it up to 35 because there were people who feared the charisma of Tom Mboya. And a lot of others that I can’t remember right now but were occasioned by roadside pronouncements and whims of our first two presidents.

 I wanted the new one to pass. It didn’t matter that it was the bastard child of impunity and violence. It mattered that it had a story behind it. I watched a lot of American TV and read a lot of their politics  and a contemporary example works for why this phenomenon convinced me we needed a new constitution. America has just gone through the Sandy Hook disaster where a 20 year old criminal shot up a school killing 20 children and 6 adults. Something that could be traced back to their lax gun laws. The reason they have such lax gun laws is because their constitution gives them the right to bear arms. This right is treated as a fundamental right by most of them and it’s very easy to rebuff any attempts at bringing tougher gun laws by pointing at the constitution and saying that this is an attack on it(this is of course a very simplified version of why they can’t get tougher gun laws passed.) now, why would people in the year 2013 care what some old, white men, most of them slave-owners and racists(the constitution originally counted blacks as 3/5s of a man) back in the year 1787 thought. There is no conceivable way that their challenges are the same as the ones we face. They could never have contemplated the extreme threats to privacy we now have, they would not have imagined in their wildest dreams that there could be such a thing as nuclear war or how planes let alone drones would change the world. But there’s a story behind it and that story is one of triumph over adversity. It reaches down to the pit of their stomachs because they feel like they fought for and earned that thing. It is a symbol of national unity. Without having read our constitution I knew I wanted it to pass. I knew that there was a story behind it and since a lot of our national myth is still being created I felt that the passing of this would be a chapter, an important chapter in the crafting of that national myth. Imagine a generation of people who can remember having a say in what laws would govern them. A generation that needed faith restored in something and at this point this is all that generation had. The blood and the tears could have been for something if we got that new constitution that we were supposed to have 100 days into NARC rule.

Well, it passed and then I never read it again. Now I’m in law school so I need to read it, I dedicate some time when I’m stuck in traffic every week to read it. Its tedious, it can be boring but it can also be inspiring. The section on the bill of rights is amazing. I haven’t seen such an expansive bill of rights ever (though we can’t bear arms.) A reading of it shows that the writers took into consideration our African culture, the sections on the environment clearly denote that a lot of our cultures believed we were holding land in trust for the countless yet to come. The endless provisions for ethnic consideration when appointing people to national posts shows that history, and especially the way history has been marked with tribalism has been considered. There are the arcanities, for instance in particular votes in the senate each county has only one vote. It happens because of nominated senators that some counties have more than one senator so they cast a delegation vote. The head of the delegation which is the elected senator can decide whether or not to listen to the other senator. I enjoy these things, then I get so tired I sleep on the matatu until I get to school.

Still though more needs to be done to bring the constitution to life. It needs to be more than just words on paper until it begins to affect people’s lives it’s just words. Until the point where a court holds someone responsible for violating another’s rights(especially if that someone does it with the backing of a government agency) then the bill of rights lies dead and flat on that piece of paper. I’m not advocating for more rights violations which are necessary in order that someone complains about them I’m just happy when there are more constitutionally related cases in the courts. Especially if it’s the Supreme Court.

A few weeks ago Raila brought a presidential petition to the Supreme Court. Apart from the issues of rigging that he was alleging there were other things that really did need to be decided. Chief among them was whether rejected votes should be taken into account when working out the percentage of votes that a candidate has won by. The IEBC had taken them into account, about 300,000 of them and this made Uhuru’s votes past the 50% mark less than 10,000 votes. The court ruled that they(rejected votes) shouldn’t be counted and this means that his number of votes past that mark are suddenly a lot more. The allegations made by Raila came to about 7,000 votes if I remember correctly which if they had been proved right would have been enough to claw Uhuru back below 50% automatically precipitating a run off, however since the court had decided that rejected votes should not have been taken into account this means that they needed to prove a lot more than 7,000 votes I’m not sure how many but a lot more. Therefore even if the court had believed these allegations the rigging was still not substantially in conflict with the principles enshrined in the constitution. Understand while reading that that I am still a law student with absolutely no bullshit-meter which means that whenever one of those lawyers talked I was convinced of what they said. When another talked I was convinced of that too and Ping-Pong it went. While our supreme court justices in comparison have been practicing, legislating and studying for more years collectively than I could hope to live (unless I was an old testament patriarch.) which is my way of saying this is an extremely amateur interpretation of what actually happened. That said I still like it. It’s the kind of logic that I find irresistible,  assuming the truth of the people you’re talking to and basing your arguments on their anchors.

This is my way of saying that I approved of the fact of the petition. I liked seeing the process playing out in front of me and I can’t wait until they release the full texts of their decision because they were given a lot to grapple with and there are few things I like less than intelligent people trying to come to a conclusion given conflicting evidence. More and more cases of this nature, at this dizzying height(the only way I could explain the magnitude of what this means to lawyers is-imagine the world cup only happens once in your life. Well this was that once.) are needed. Law is one of those places where words matter and matter a lot. Words can change things, not in an abstract way where they make us feel more empathy and become more human but in a way we can see. They can save lives, they can condemn them. The words written in the laws that come from parliament are just the first step. The hopelessly verbose words that come out of judgements, stitched through with precedent and consideration of statute and the balance of probabilities on which evidence is weighed are also important. Especially given the wide number of interpretations that the words in the constitution allow.

Also anything that brings the wonder that is Kethi Kilonzo into my living room for hours and hours is a good thing. There was a moment, she had already thoroughly impressed me at this point, when one of the other lawyers stood up as she talked. “He is my senior but he must sit down” she said this with a hint of steel in her voice and then looked down. Her body was moving in that dancy kind of way that it did the whole time, if body language and tone could be moulded into one thing, that one thing on her would be described as communicating in a  sing-song way. She said this and the man had to sit down and at that point I would have proposed. Anything that brings her into my living room is worth the watch.