Unprocedural amendments cannot create ‘illegitimacy’

previously published on http://nairobilawmonthly.com/index.php/2017/01/04/unprocedural-amendments-cannot-create-illegitimacy/

BY NEWTON ARORI

In an attempt to defend his controversial submissions in Unconstitutionality of the constitution, Shadrack Muyesu has made at least three arguments in On unconstitutionality, opponents miss the point by a mile, which we shall address here.

Natural law

The first of his arguments, and indeed one that is a central pillar to Muyesu’s whole premise, is that in the setting of “natural law”, constitutions may be unconstitutional. That much is correct, except that the existence of natural law itself is questionable. The concept of natural law is problematic mainly because of its vagueness. What exactly is natural law? Naturalists envision an invisible code of rules that are meant to govern the conduct of men. Where exactly that code is to be found, let alone its full contents, is not made clear.

Take the example the Penal Code’s criminalisation of “acts against the order of nature”.

Unfortunately for Muyesu, and the rest of the naturalist community, there is no clear demarcation between what is natural and what is not. While it may be felt, for example, that homosexuality is unnatural, there is also a strong case to be made that oral sex, or even kissing is not natural either. Should we therefore set out to criminalise all perceived “unnatural acts”? Public morality is equally ambiguous and often unascertained. I would challenge Muyesu to adduce a single report showing, as he asserts, that Kenya is “a population traditionally hostile towards promiscuity”.

Jurisprudential discourse

The second of Muyesu’s arguments is that his article was meant purely for jurisprudential purposes, and should therefore be seen in that light, and not be attacked against the backdrop of the Constitution of Kenya. The upshot of that argument is that a constitution may be theoretically unconstitutional, regardless of its legal validity, and even the absence of a forum to declare it unconstitutional. I will be the first to concede that in a jurisprudence class, anything is possible. There is no limit to creativity around legal concepts, as is demonstrated by persons who even sue themselves.

My contention stems from the fact that the law does not operate in a vacuum. A brief illustration: One may rightfully question why the law in Kenya allows a widow to inherit the property of her deceased husband even if they had been separated for decades, while a widower may only inherit the property of his deceased wife if he can prove that she was maintaining him immediately prior to her death. The reason is quite simple – in Kenya, men have traditionally been the providers, and not vice versa. Thus the law, to a large extent, concerns itself with the “what is” rather than the “what could be”. You cannot discuss constitutionality in Kenya without regard to the Constitution of Kenya, or majority of constitutions in the world.

The trouble with the “what could be” approach, which Muyesu seems obsessed with, is that it is often too fantastic and not applicable to the real world. Perhaps nothing better illustrates the futility of “what could be” discourse better than the classic “Speluncean Explorers Case”, a fictitious case constructed by the legal philosopher Lon Fuller (Harvard Law Review Vol. 62 No. 4 February 1949).

In the case, a group of cave explorers are trapped by a landslide and subsequently learn that the rescue team will take at least 10 days to save them. The explorers also learn that they are unlikely to survive without food for that long, so they collectively agree to kill and eat one of their numbers in order to survive. To decide whom to kill, the explorers agree to roll a dice – the loser is killed and eaten. The remaining people are eventually rescued and charged with murder. The case proceeds before a bench of five judges who should determine the guilt or otherwise of the explorers. Two judges decide in favour of the explorers while two judges find the men guilty, with one judge recusing himself due to the difficult nature of the case.

What is the lesson here? While I do not rule out the possibility of such a case arising in real life, the chances of it happening are nearly zero. In fact, Fuller himself cautions that any reader who seeks out to trace contemporary resemblance of the case is engaged in “in a frolic of his own”. The same may be said of Muyesu.

In Why a constitution cannot be unconstitutional, I argued that courts hardly entertain suits challenging the constitutionality of a constitution, and that situations that would necessitate such a suit are even less likely to arise.

The inevitable question at this point then would be: How valuable are theoretical projections? I respectfully see Muyesu’s point of view and appreciate the role of the hypothetical. But in a country still coming to grips with its supreme law and struggling with corruption and bad governance, Muyesu and his ilk would do well to channel their energies towards solving real problems by discussing the “what is” rather than “what could be”. Theories of abstraction may be valuable for provoking imagination and their entertainment value in the classroom, but are of little use elsewhere.

Procedural incorrectness

Finally, I will allow Muyesu a narrow technical point for pointing out that a constitution may be unconstitutional for lack of procedural correctness during amendment, if the procedure is provided for by the constitution itself. It must be remembered, however, that this discourse has been on the constitutionality of constitutions based on substantive, not procedural, provisions of the constitution. That can easily be seen from Muyesu’s persistent usage of the phrase “superior norms”.

Thus, the correct inference would be that where the procedure for amendment is not followed, the result is a nullity, or a failed amendment – never an unconstitutional constitution!

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