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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On the illegitimacy of laws, critics miss the point by a mile

previously published on http://nairobilawmonthly.com/index.php/2017/01/04/on-the-illegitimacy-of-laws-critics-miss-the-point-by-a-mile/

By Shadrack Muyesu

Under the title “Why a constitution cannot be unconstitutional”, the October 2016 issue carried an antithesis of my “controversial” work, “Unconstitutionality of the Constitution”, that ran in the September 2016 edition. The author, Newton Arori, questioned the idea that there exist superior norms within and without the Constitution, against which constitutional amendments ought to be gauged for constitutionality.

Citing an array of sources, Arori provided an alternative in the rationale that constitutional clauses were all complementary, with none being superior to the other. He also noted the absence of a constitutional forum within which the constitutionality of constitutional amendments could be challenged. In doing so, he referred the reader to Article 2(3) of the Constitution (of Kenya, 2010), which protects the Constitution from any challenge on its validity or legality before any court or State organ.

Finally, while accepting that unchecked, numerous amendments could result in a starkly self contradicting document, he stressed that the drafters considered a vaccine to this affliction in the requirement that, where required, proposed changes must be subjected to a referendum which should determine their adoption. Even then, he emphasised that contradictions were a natural feature of the Constitution, which courts retained the duty to reconcile and resolve. To aid his course, he cited the locus classicus on separation of powers in Marbury vs. Madison

I shall endeavour to address Arori’s worries in due earnest but before I do so, it’s only prudent I clarify a misrepresentation others like Arori, might have adopted. My work wasn’t concentrated on the Constitution of Kenya, 2010; certainly, it did not question its constitutionality. Its sole purpose was to debunk the popular yet incorrect thinking that constitutions cannot be unconstitutional. My reference to the Constitution of Kenya was merely for demonstration purposes – that indeed there existed superior norms. That said, whether a constitution is unconstitutional or not is purely a jurisprudential discourse. While positivists tend to favour the cue taken by Article 2(3), naturalists are agreeable that indeed constitutions can be unconstitutional. I shall explain in due earnest.

Legitimacy and superior norms
Can a constitution be illegitimate?
In answering this question, I shall retain the information of the widely accepted definition of a constitution as a social contract between governors and the governed. As creatures of society, constitutions betray the supervening public morality. Public morality shifts with the growing complexities of society, which phenomenon Rousseau classes, “the sentiment of their existence – the ability of human beings to change their material and psychological relations to one another” (Jean Jacques Rousseau, 1762). As I highlighted in my initial article, a constitution must be adaptable to societal evolution: an un-amendable constitution adopted by a generation long since dead can hardly be viewed as a manifestation of the consent of the governed. A constitution that isn’t progressive at the instance of the citizens is therefore illegitimate (Edmund Burke, 1984; James Madison, 1987).

According to Rousseau, a constitution is a custodian of the general will of the governed. By studying this, will we understand their general (public) morality. But do constitutions always demonstrate this public morality? Of course not. Ideally, the general will should be what the citizens of the State have decided together in a general assembly – a phenomenon common with the direct democracies of the old.

The convenience of indirect democracy, however, results in a “general will that is a transcendent incarnation of the citizens’ common interests, which exist in abstraction from what any of them really wants.” Simply put, the modern constitution cannot accommodate all interests; it is a compromise that dilutes public morality. That courts are only limitedly influenced by popular sentiment means that the constitutional interpretation of the courts – which positivists like Arori so believe in – is, too, a compromise that often dilutes and, in some cases, even erodes public morality. My conclusion, that occasionally citizens end up being governed by laws they never chose, that such laws though legally valid are illegitimate, is therefore anything but far-fetched.

I will cite a few examples. While studies have shown that the Kenyan population is largely hostile to homosexuality, the High Court has interpreted the Constitution as protecting of minority (including gay) rights (Eric Gitari vs. Non-Governmental Organisations Co-ordination Board & 4 Others [2015] eKLR). In addition, for a population traditionally hostile towards promiscuity, the law steers clear of entirely banning promiscuous acts – choosing instead to only criminalise “carnal knowledge against the order of nature”, as well as “living off the gains of prostitution”.

In Gitari, the court opined that though the Penal Code criminalises carnal knowledge against the order of nature, it does not define what carnal knowledge against the order of nature is, all but legalising gay intercourse. And here is a personal favourite: while public sentiment against atheism (and devil worship) remains loud, the Constitution emphasises the secularity of the State. This may also be observed of the two- thirds gender rule in a society that is generally patriarchal, and the clamour for decisive (punitive) presidential action against runaway corruption when the Constitution sacrificed a strong presidency at the altar of rule of law and separation of powers.

According to Rousseau, a State that defies the general will (indeed, public morality) is equally illegitimate. Similarly, a constitution cannot be legitimate if it misrepresents the intentions of the citizens. For a general will to be truly general, it must come from and apply to all, substantively and formally. For Rousseau, this can only happen in societies that are sufficiently homogenous. He asserts that, in well ordered societies (sufficiently enlightened, virtuous and agreeable to restrictions), the necessary compromise can be achieved – which really is an agreeable middle ground, a plastic general will and therefore, a simulated public morality. Unfortunately, highly socio-economic and culturally stratified and rural societies, such as Kenya, remain incapable of such a compromise.

Yet, Rousseau isn’t entirely pessimistic. As a way forward, he recommends (or notes?) a reliance on a virtuous legislator, who is to convince citizens of the need for compromise and, in the process, inculcate in them a variant public morality in the acceptance of the plastic general will (the constitution as a compromise). He is, however, clear that the legislator should not create a new morality, but tailor the existing public morality to come up with an agreeable compromise.

To formalise this new general will (the constitution), Rousseau believes that citizens must be virtuous and knowledgeable, otherwise they won’t notice it when the legislator is lying to them. For him, “good will can only be willed by good citizens”. As I adopt this position, I invite the reader, indeed, Arori, to consider the number of times legislators have misguided citizens. As rising disaffection with some of the novelties of the Constitution in an expanded Legislature and a limp Senate demonstrate, the legislator, for his own selfishness, constantly fails in his function of inspiring the required public morality – a sense of collective identity.

‘Substitution’ doctrine

To drive home the idea that constitutional clauses are equal, Arori cites the dictum of Justice Kato in “Rwanyarare and Haj Badru Wegulo vs. Attorney General (Constitutional Petition No. 5 of 1999): “…the court had no power to declare one article of the Constitution inconsistent with another, but could deal with the question as to whether or not the correct procedure was followed when the act was passed…”

Curiously, Kato seems to accept that constitutional amendments are illegitimate if they fail on procedure. Thus the question begs, what creates this procedure? Is it the Constitution? And does the Judiciary reserve the right of constitutional interpretation in cases of a conflict? If yes, was it correct for him to rule that the court had no power whatsoever to declare one part of the Constitution inconsistent with another? Of course not. And does this collapse Arori’s argument that constitutional amendments cannot be unconstitutional? In my opinion, it does!

Commendably, Arori cites quite a number of authorities to assert his claims. As well, my initial work cited authoritative rulings of its own, key among them being the dissenting opinion of Kennedy J. in State (Lemmon) vs. Ryan J., and the landmark ruling of the Supreme Court of India in Kesavanada Bharati vs. State of Kerala and Anr. I will also refer Arori to Colombia where the Constitutional Court issued two decisions striking down two bodies created by Legislative Act 1 of 2015, a constitutional reform act aimed at an extensive constitutional overhaul of the separation of powers. The court relied on the substitution of the constitution doctrine, which enabled it to strike down constitutional amendments that, in its view, went beyond merely amending the existing constitutional text to “replace” core constitutional principles. I will also refer him to Peru where the Supreme Court rejected the idea that constitutional reform is merely a political act that could not be subjected to judicial scrutiny.

In civil applications Nos. 0050-2004-AI/TC, No. 004-2005-PI/TC, No. 007-2005-PI/TC, and No. 009-2005-PI/ TC (Reform of the Pensionary System of Law” cases), the Supreme Court observed that all creatures of the Constitution, including Congress, bore a duty to maintain a fidelity to the Constitution and its values – which fidelity, alongside constitutional principles and basic democratic values, the Judiciary bore a duty to protect.

Unconstitutionality

Islamic constitutionalism, which is generally inferior to modern secular constitutionalism, offers us the best avenue of appreciating unconstitutional constitutions. Sharia Law retains supremacy even where the legal system is seemingly secular – which inclines judges to favour a naturalist approach to constitutional interpretation. Where, as in the Islamic Republics of Iran and Kuwait, this supremacy is codified, the interpretation though positivistic, will still favour natural (Sharia) law.

In the latter instance, Islamic legal science, fiqh, which is generally flexible in nature, can be classed as the principle determinant of the public morality of these societies. Fiqh is itself founded on an unchanging Sharia Law, which Secondary Law (the Constitution) must be agreeable to, it hence its status as a superior constitutional norm without the Constitution. Therefore, a constitutional provision, amendment or interpretation that flies off the handle of fiqh is unconstitutional – similarly so to a constitution.

Granted, where the law allows, the public may demand a secular constitution without the burdens of fiqh, but this should be interpreted as nothing beyond an acceptable shift in public morality (see The Relationship between International Law, Islamic Law and Constitutional Law of the Islamic Republic of Iran – A Multi-layer System of Conflict, by Ramin Mostchhagi. As well, the Preamble of the Iranian Constitution, 1979, identifies the Constitution as a social construct evidencing the public morality of the Iranian people). It is curious to note that, unlike its Kenyan equivalent, the constitution of Iran lacks a constitutional supremacy clause. Article 61 is particularly instructive that the courts, in carrying out their functions, ought to be instructed by Islam (beyond the Constitution).

By way of summarising this discourse, constitutions can be illegitimate if they misrepresent the nature of the society they are meant to govern. I have also demonstrated the possibility of superior clauses within the constitution and superior norms without the constitution – the latter classed as “constitutions without constitutions”.

Finally, I also demonstrated that constitutional amendments can be unconstitutional if they are arrived at unprocedurally, or if they defy superior norms within and without the constitution, and that constitutions can be unconstitutional, where they laden with inconsistencies or stand in defiance of superior norms.

But is this unconstitutionality justiciable? Well, this depends on the jurisdiction: in parliamentary supremacies and natural law states, this is very much possible.

A constitution cannot be unconstitutional

previously published on http://nairobilawmonthly.com/index.php/2017/01/04/a-constitution-cannot-be-unconstitutional/

By Newton Arori

In the September issue, readers were treated to an article with the incredulous headline “Unconstitutionality of the Constitution”.

Now, the very notion of an unconstitutional constitution is slightly bizarre, more like saying that the Bible is unbiblical, but I will let it pass. In the article, the author, Shadrack Muyesu, puts forth arguments to support the idea that a constitution can be unconstitutional. It is those arguments that I take issue with. As we shall see, his case is superficially appealing but begins to break down upon closer examination.

The aim of this article is to correct the impression created by Muyesu’s piece. We will argue that a constitution cannot be unconstitutional in any circumstances; it can only be a bad or imperfect constitution.

As Muyesu himself seems aware, a constitution cannot be unconstitutional for lack of another constitution against which alleged unconstitutionality must be construed. He, however, proceeds to assert that some constitutional clauses are superior to others, and that failure to abide by these “superior” clauses results in unconstitutionality. Therein lies the fallacy.

To begin with, the Constitution of Kenya, 2010, as all other constitutions, affirms its place as the supreme law of the land in Article 2(3) where it states: “The validity or legality of this Constitution is not subject to challenge by or before any court or other state organ”.
Therefore, even if one felt that a clause of the constitution is somewhat unconstitutional or illegal, there would be no forum before which to challenge it, and nobody to make that declaration of unconstitutionality.

Even where one challenges an amendment to the Constitution on the basis of non-compliance with “superior” constitutional clauses, the courts have shown reluctance in entertaining such cases.

The above position is very well illustrated by the case of “Rwanyarare and Haj Badru Wegulo vs. Attorney General (Constitutional Petition No. 5 of 1999 [unreported])”. The petitioners had moved to court alleging that certain articles of the Constitution of Uganda were inconsistent with other articles of the same Constitution, and constituted threats and infringements to the inherent rights and freedoms therein. The petitioners sought to have the offending clauses declared unconstitutional.

The petition was dismissed as incompetent, with the court holding that it did not have jurisdiction to construe parts of the Constitution as against the rest of the Constitution. Justice Kato said: “This court has no power to declare one article of the Constitution inconsistent with another, but could deal with the question as to whether or not correct procedure was followed when the (amendment) Act was passed.”

Thus, provided the correct procedure for amending the Constitution has been followed, the new clause forms part and parcel of the Constitution, and it is not open for the court to inquire into the constitutionality of the said clause.

More importantly, it is crucial to note that constitutional clauses are all complementary; none is superior to the other. There are numerous authorities to support this position.
In “Paul Ssemogerere and Others vs. The Attorney General,  (Constitutional Appeal no. 1 of 2002) [2004] UGSC10)” for instance, it was held that “it is a cardinal rule in constitutional interpretation that provisions of a constitution concerned with the same subject should, as much as possible, be construed as complementing, and not contradicting one another. The constitution must be read as an integrated and cohesive whole.”

Likewise in the case of “Smith Dakota vs. North Carolina 192 US 268(1940)” the Supreme Court of the United States pronounced itself thus: “It is an elementary rule of constitutional construction that no one provision of the constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.”

From the foregoing, no constitutional clause is superior or inferior to another. Constitutional clauses are complementary.

Unfounded fears

Muyesu’s concerns appear to stem from a fear of having contradictory clauses in the Constitution, and the resultant chaos, should amendments to certain provisions prevail.  He asserts that: “A popular initiative to rid the Constitution of the two thirds gender rule through an amendment can be procedurally correct. However, to attempt this feat without suitably amending Articles 2, 10(2), 19, 20(4), 21(2), 81… as well as implementer Acts would be to inject massive contradictions in the constitution…”

This point is valid, but should not be a source of concern.  The drafters of the Constitution evidently anticipated mischief from our legislators, hence the requirement for a referendum in certain instances.

Article 255 of the Constitution provides: “A proposed amendment to the Constitution shall be approved by a referendum if the amendment relates to any of the following matters: a) the supremacy of the Constitution; b) the territory of Kenya; c) the sovereignty of the people; d) the national values and principles of governance mentioned in Article 10(a) to (d); e) the Bill of Rights; f) the term of office of the president; g) the independence of the Judiciary and the commissions and independent offices; h) the functions of Parliament; i) the objects, principles and structures of devolved government; and j) the provisions of this chapter.

Thus, an attempt to rid the Constitution of the two-thirds gender rule would trigger a national referendum since it relates to equality, which is among the national values and principles of governance mentioned in Article 10… So would an attempt to tamper with the independence of the Judiciary. Such amendments are highly unlikely to succeed, as the public is now aware of their potential retrogressive effect(s).

But even in the unlikely event that they were to succeed, there would not be a crisis. As it is, there are numerous contradictions in the Constitution, real or perceived. Fortunately, courts have the power to reconcile and resolve these contradictions where possible. In the landmark American case of “Marbury vs. Madison”, it was held that “it is emphatically the province and duty of the judicial department (the judicial branch) to say what the law is.”
Professor Githu Muigai, Kenya’s Attorney-General, in highlighting the challenges of interpreting the Constitution, has observed that the Constitution being a political charter and a legal document, makes its interpretation a matter of great political significance, and sometimes controversy. He writes:

“The constitution contains conflicting or inconsistent provisions that the courts are called upon to reconcile, and at other times the Constitution implicitly creates a hierarchy of institutions or values and the courts are called upon to establish the order of importance. At times, the Constitution is vague or imprecise or has glaring lacuna and the courts are called upon to provide the unwritten part…”

In conclusion, it is acknowledged that, while a Constitution may have (and always has) its imperfections, there will be clauses that do not seem in tandem with the “norms” or principles underpinning the Constitution, and no one is really saying otherwise.

Moreover, as explained above, we already have a remedy for constitutional incoherence – reconciliation by the courts. However, to construe those imperfections as amounting to unconstitutionality is jurisprudentially unsound and only creates needless confusion.

Can Constitutions be Unconstitutional?

Previously published in http://nairobilawmonthly.com/index.php/2017/01/04/can-constitutions-be-unconstitutional/

 

By Shadrack Muyesu

Constitutions have been defined as political charters that define relationships between the governors and the governed. As such, constitutional amendments are nothing more than political concessions that evidence supervening political moods. The place of the Constitution, however, demands that they be sufficiently rigid so as to rid the right to amend of mala fides, as well as safeguard its certainty.

The truth of this statement not only suggests an inherent imperfection of the Constitution, it also alludes to the existence of superior rules independent of or within the Constitution which constitutional amendments bona fide ought to adhere to. Questions therefore arise: does its imperfection render the Constitution illegitimate? Does the failure of amendments to follow these superior guidelines render them unconstitutional?

Jeffersonians are clear that they do not. Unlike ordinary norms, which derive their legitimacy from a fidelity to the Constitution, they reckon that public participation renders constitutions valid even where they are supposedly imperfect (Hans Kelsen, 1934). As such, unconstitutionality cannot be imputed on the Constitution as it can on ordinary norms. Popular sovereign will is decisive. The certainty of law, its concept and the nature of the change makers are not as important – to the point of being inconsequential even (James Madison, 1788).

For the longest time, the Jeffersonian notion was held true. Efforts to constitutionalise constitutional amendments were resisted by courts and contemporary ideologists alike – and with admirable mettle. In “State (Lemmon) vs. Ryan J.” Justice Kennedy’s proposal that amendments repugnant to natural law be necessarily unconstitutional was, for instance, overruled by a firm majority, which observed that, by addressing itself to what constitutional features were fundamental, and what were not, the Judiciary would be acting ultra vires.

A trilogy of latter decisions emphasising popular sovereign will ensured that Lemmon wouldn’t go down as a one-off influenced by the peculiar circumstances of the time (abortion, being the interest matter of the case, enjoyed a special status in Irish politics). In “Riordan vs. An Taoiseach”, one judge observed that no question of a constitutional amendment properly placed before the people could be unconstitutional.  In “Hanafin vs. Minister of the Environment”, the court not only restated the incompetence of any state organ, including courts, to overrule sovereign will; it also deemed such the will to be freely given and therefore incapable of question.

To the extent that the constitution-making process is a sovereign act, which does not require legal authority, the position taken by Ryan, Riordan, Hanafin et al certainly holds true. Whether a constitutional amendment was carried out in a manner and according to the power conferred by the Constitution is, however, a judicial matter. An amendment to the Constitution can therefore be just as ultra vires as an ordinary law can be.

The key to understanding the concept of unconstitutional constitutions lies in accepting that some clauses of the Constitution are actually greater than others (superior norms). It’s equally important that we accept that even for written constitutions, there are important unwritten principles which are not only part of the Constitution but that are also superior norms (the jurisprudence of the Supreme Court of India in “Kesavananda Bharati … vs. State Of Kerala And Anr”).

Superior norms are the backbone of every constitution, the rules that define the nature of the community it’s meant to govern, and how it (the Constitution) is supposed to be construed. They are the unammendable rights and features of the Constitution. To change them would be to change the very nature of the contracting parties and therefore redefine the subject of the contract (as well as being a political charter, the Constitution is a social contract).

A fierce critic of Kelsen, Herbert Lionel Adolphus Hart, actually thought that laws could be invalid if they did not obey these superior norms (H. L. A. Hart, 1994). In what could have inspired Kesavananda, he distinguished between a failure for want of form from a failure for want of substance, arguing that the latter could only be assessed by interrogating unwritten societal norms and rules.

Fortunately, norms are increasingly being codified in the form of constitutional preambles, constitutional and national values, non-derogable norms and unammendable human rights and freedoms. The clause on uncontestable constitutional supremacy is itself a superior norm. If we consider Kesavananda (where the court affirmed the place of the preamble in the Constitution) and “Lord Wright Jones v. Commonwealth of Australia” (where the court firmly stated that the Constitution is a federal compact which construction must hold a balance between all its parts), we notice a seismic shift from Ryan (supra) where popular amendments can be carried out as of right to where they have to be justified.

Superior norms are the cords that bind the Constitution together; individually, they reflect throughout the entire document. Attempting a comprehensive amendment that considers all instances of the norm is not only an arduous task; it is to unmake the law. If I may cite a few examples… A popular initiative to rid the Constitution of the two-thirds gender rule through an amendment of Article 27 can be procedurally correct. However, to attempt this feat without suitably amending the Preamble, Articles 2, 10 (2), 19, 20 (4), 21(3), 81, 97 and the rest of the gendered provisions of the Constitution as well as the implementer Acts (ordinary norms) is to inject massive contradictions into the Constitution. The same can be said of Article 159, where the independence of the Judiciary can only be negated if the Rule of Law is also ejected from the Constitution, and many more.

The opposite, the ideal, the harmonisation of the related laws would mean a mass overhaul of our laws, a reconsideration of our international obligations and the realignment of state policy (which would destroy the basis of the Constitution). Not only is it expensive, but also the general population in a liberal democracy cannot be trusted to carry out such comprehensive amendments (Carl Schmitt, 1927).

Contemporary argument has been that a constitution cannot be unconstitutional for lack of another constitution against which alleged unconstitutionality must be construed. To hold this principle true is to assume the equality of norms while also regarding true the fallacy that constitutional norms cannot exist without the Constitution. But as I have demonstrated (albeit summarily), not only are norms unequal, there are superior constitutional norms that exist without and which inform the written constitution. To defy these norms is to defy the Constitution, hence unconstitutionality. ^

Hornbill’s problem: Implications on sector of successive collapse of banking institutions

Previously published on the Nairobi Business Monthly May 3rd 2016

By Shadrack Muyesu

An external audit is “a periodic or specific purpose (ad hoc) audit conducted by external (independent) qualified accountant(s). Its objective is to determine, among other things, whether (1) the accounting records are accurate and complete, (2) prepared in accordance with the provisions of Generally Accepted Accounting Principles (GAAP), and (3) the statements prepared from the accounts present fairly the organisation’s financial position, and the results of its financial operations.”

At a time when the mandate of auditors has increasingly come under scrutiny, this definition of an external audit given by the Business Dictionary makes it very difficult to see beyond the culpability of external auditors in the fall of a number of local lenders. Yet, this is the position the Institute of Certified Public Accountants of Kenya (ICPAK) has taken. The institution has, on a couple of occasions, sought to reiterate the position that external auditors could only assume criminal liability to the extent of the information availed to them by directors. As long as they followed the correct procedure and qualified their final report on grounds of limitation of scope, it is very difficult to lay blame at the foot of external auditors.

Positives

As expected, there has been a public outcry about this position taken by ICPAK. Many have come out to say that the Institute reserves the sinister motive of protecting auditors, especially the big ones such as Deloitte. But they couldn’t be further from the truth. There is, in fact, no contradiction between the role of external auditors, according to the Business Dictionary, and their role as imputed by the Institute. The Institute only acknowledged that in executing their mandate, external auditors were reliant on records availed to them by directors. Going beyond their traditional reliance on the information availed to them by directors would be akin to conducting a forensic audit and such would require a civil warrant.

Yet such supposed grey areas wouldn’t have come to light had it not been for the recent collapses. Stakeholders are moving swiftly to correct these anomalies so as to revive collapsed banks and strengthen the remaining ones. Already, there are calls to have the Banking Act amended to expand the mandate of external auditors as well as clearly define the roles of auditors vis a vis bank boards. There are voices that also believe that as a long term solution, the scope and objectives of an audit ought to be revisited.

Speaking of first moves, through letter to external auditors of commercial banks dated 11 November 2015, the Central Bank granted auditors power to assess the IT environment of commercial banks and issue a report of findings to the Central Bank of Kenya – a bold move believed to be behind the recent findings. Central bank has also pledged financial support to small lenders to keep them alive “should depositors come calling in a similar panic withdrawals that sank Chase Bank.” Raising minimum core capital has also meant that small lenders could be forced to merge. By and large, a new regime of scrutiny means better liquidity for local lenders.

Negatives: Deposits

The most obvious effect of the collapse we are witnessing is that there will likely be a slump in the financial market since people will shy away from keeping their monies in banks, resulting to a less profitable financial market. Banks have the unique capacity to finance production by lending their own debt to agents willing to accept it and to use it as money-making healthy banks as perhaps the best indicator for stable economies. More savings has always meant more public investment.

In his paper, “A Macro Analysis of Bank Performance in Debt-Burdened Countries”, Obademi Olalekan Emmanuel even argues that a drop in savings forces banks to access high-risk funds in order to boost their capital reserves. This makes banks more susceptible to distortions introduced into the financial system as a result of a country’s high debt profile. Public spending has seen both our internal and external debt profile rise at an alarming rate recently. If Obademi’s argument holds true, then the current banking shocks couldn’t have come at a worse time.

Cost of capital

Cost of capital is likely to go up to discourage public borrowing so as to shield other financial institutions from collapsing. In an environment of relatively low interest rates borrowing is high – a situation which if not monitored could negatively impact a bank’s capital. To strengthen capital bases, loan interest rates are bound to rise and therefore drive the cost of borrowing upwards. Though guaranteeing greater stability for banks, a high cost of borrowing is bad news for the average citizen who depends on loans to finance investment. Starting a business will be much harder and the cost of business expansion will be likely passed to the consumer, hence driving the cost of commodities upwards. In an environment of costly multiplier effects, the economy could witness a cost-driven inflation.

Impact on foreign investment

Inflation impacts negatively on our ability to acquire external debt. Kenya’s debt volumes are already too high, a cost driven inflation coupled with current state of the global economy is enough to convince many external lenders that our economy cannot produce enough surplus to pay off debts. Like banks, the Government could likely turn to riskier sources for capital. Domestic borrowing, for instance, would only drive the cost of capital further up.

A significant section of investors might as well interpret the collapses as being as a result of poor monitoring by the regulators and/or a weak finance regime. They could lose confidence in our financial systems, leading to decline in foreign investment.

Jobs

That said, the most obvious consequence of the fall has to be job losses. Lost jobs mean a punctured tax basket for Government and an increase in poverty levels. But former bank employees are not the only victims. A rise in the cost of doing business means that many businesses will have to trim their work force as well. Remaining employees could see their benefits slashed.

The general misconception has been that the collapse of the three banks does not necessarily mean a crisis in the banking sector. But the effect highlighted above are net effects that may arise from measures taken by the regulator to stem further falls in the industry – not measures aimed at curing individual banks. As such, they deeply affect the entire banking sector with secondary effect to the general economy.

Oh, corruption? Blame the law!

previously published by the Nairobi Law Monthly

Devolution and Planning Cabinet Secretary Anne Waiguru speaking during National Stakeholders forum on post 58 session of the Commission on Women (CSW) at Hilton Hotel in Nairobi on May 21, 2014. Kenya Women Parliamentary Association (KEWOPA) Chairperson Cecil Mbarire said bid to impeach Waiguru is political vowing women political leaders will defend her. BILLY MUTAI (NAIROBI)

By Shadrack Sharu Muyesu

“Litigation must obey both substantive and procedural law, anything else only amounts to ‘woishe’ litigation for which the courts can do nothing apart from sympathise” – Elisha Zebedee Ongoya, Lawyer

Just ask one-time Thai supremo Thaksin Shinawatra about corruption and he will happily tell you about it. While his niece Ms Yingluck Shinawatra continues to cool her heels in a tough Thai remand facility, the old man is wanted back home for alleged corruption, money laundering and embezzlement, globe trots. A fugitive, he does everything possible to ensure that Thai authorities do not get to him, lest they fry him in the same pan they fried his niece. People are tired of corruption. Nations and organisations alike, everyone is doing everything they can to slay this monster. So serious is the matter that even innocents are suffering for seemingly abetting bad behaviour. Sunderland FC chairman didn’t need much persuasion to resign when it came to fore that her club had fielded an alleged sex offender in Adam Johnson. Closer home, a wily cat with 62 lives, Jacob Zuma survives, but only with a sail so punctured by unrelenting parliament reprimand that his ends seem more less about “when” than “whether”. As it was in the days of Richard Nixon and his Watergate scandal, the war on corruption isn’t afraid of the big boys anymore – well at least in every other place apart from Waiguru’s Kenya.

We want to do something. The President perhaps wants to do something as well. We make as if to do something only to remember that it’s a new constitution we are dealing with and therefore a new era where things are dealt with “constitutionally.”

We wouldn’t admit it but amidst the growing agitation is our secret hope that we could reverse the time banner to the pre-August 8 2010 days. In those days, all we needed to slay this rabid “corruption cartels” monster was a roadside directive, triumphantly pronounced by a Pompeii of a president to a chanting crowd that would guarantee “unemployment” for a thieving government minister and his incompetent public servant friend. But lo! We sacrificed our “right of way” at the altar of good practice in a “mzungu” constitution!

A question of procedure

The problem with this Constitution, as the learned lost would say, is that it’s too much on procedure and “boring” principles such as the rule of law and non-interference. After all, it is the same constitution that sets in place the Ethics and Anti-Corruption Commission (that “thing” that does not work) and with it a guiding Act that envisages a slow process of waging the corruption war. The experts had it that this war would begin with receipt of complaints by the commission followed by the assignment of officers to conduct a preliminary inquest that ought to mother the main investigation, should a prima facie case on an alleged corruption issue be raised. After such investigation, cushioned by the ambiguity of “without undue delay,” a file report is submitted to the Director of Public Prosecutions. It is the DPP that decides the fate of this file, whether to proceed the matter to a formal trial or ignore the file altogether for want of evidence. Forget about the Constitution; this is where the Devil really starts accosting us.

Role of the DPP

Wanjiku says no one is ever prosecuted. What Wanjiku doesn’t know is that there is not only a question of procedure but also very fundamental rules of procedure which, when not followed, cannot escape the advantageous exploitation of a well-paid lawyer. Such rules may be as summarised under Articles 47 and 48 of the Constitution. Indeed, courts have come out to say that the right to fair administrative action imposes a duty of observance on not only judicial and quasi-judicial bodies, but also those tasked with investigations that could potentially significantly affect the perception of the accused among the upright society, or even warrant the commencement of a prosecution (Re Pergamon Press Ltd [1971] Ch. 388 and Petition no. 230 of 2015 Consolidated with Petition Nos. 305, 324 and 203 of 2015). In the latter case, being the matter of Eng. Michael Kamau and Charity Ngilu (remember them?) and10 others vs the EACC and 2 others, the court held the Ethics and Anti-Corruption Commission to be in fundamental breach of the petitioners’ right to fair administrative action in failing to give them a proper hearing at the investigation stage.

Simply put if you are a “thief”, the EACC should ask you to show cause as to why you are thieving. Not only so, but to also do it in a subtle manner – so the court opined.

Article 157 of the Constitution of Kenya 2010 creates the office of the DPP. Bestowed upon him are the powers to institute and undertake any criminal proceedings against any person and in any court other than a court martial in respect of any offence alleged to have been committed; to undertake and continue any criminal proceedings that may have been commenced by any person or authority in any court of law with the permission of that person or authority; and to discontinue proceedings at any stage before judgment for any such proceedings he takes over or institutes. We complain about the President yet this is the man we ought to have our sights trained on.

The Constitution has moved to protect the DPP by granting him total independence from any other entity, other than the Constitution, in the exercise of his functions.

Commendably though, there also exist checks and balances within the law to ensure that he does not abuse his office. The DPP cannot, for instance, issue a writ of nole prosequi without first informing the court. Most importantly, the DPP cannot commence proceedings against any person without a strong prima facie case. The Code for Prosecutors of the Crown Prosecution Service of the United Kingdom as reflected in our own prosecution policy, The National Prosecution Policy, revised in 2015, provides, inter alia that:
“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.”

In “R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001”, the position of the court was that “…a prudent and cautious prosecutor must demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution, otherwise the prosecution will be malicious and actionable” (emphasis is mine).

On the same matter in Michael Kamau (supra) the court reasoned thus:
“…criminal process ought to be invoked only where the prosecutor has a conviction that he has a prosecutable case. Whereas he does not have to have a fool proof case, he ought to have in his possession such evidence which, if believable, might reasonably lead to a conviction. He does not have to have evidence which discloses a prima facie case under Section 210 of the Criminal Procedure Code since a decision as to whether a prima facie case is disclosed is a jurisdiction reserved for the trial Court. He, however, must have evidence which satisfies him that his is a case which ought to be presented before a trial Court. He must therefore consider both incriminating and exculpatory evidence in arriving at discretion to charge the accused. Unless this standard is met, the Court may well be entitled to interfere with the discretion of the prosecutor since that discretion is not absolute…”

Curiously, in Michael Kamau, the court yet observed: “It must be acknowledged, from the many cases that are prosecuted successfully in this country, that we have excellent investigators and state prosecutors who painstakingly do their work, and do not effect an arrest or prosecution until they have sufficient evidence to present before a court.  Such officers are to be commended, and encouraged.  But we also have many others who arrest first, and seek to investigate later. This court does not need to emphasise that it undermines the administration of justice, and the public confidence in the justice system, when arrests are made and shoddy investigations undertaken.”

It stems from the above therefore that the DPP ought to be very careful about corruption files that he brings before the court. Incomplete files may not only mean an abuse of the court process that culminates in such a case being thrown out, but also to an action of malicious prosecution instituted against him.

In a rather perfect juxtapose, what is presumably the biggest success of the law as regards protection from any abuse of office, the independence of the office of the DPP in choosing which files warrant proceedings also presents its biggest problem, in that there is absolutely no modicum of determining whether dead investigations are actually dead because of the aforementioned reasons. Whether the previously stalled investigations are thus stalled for want of the evidence and not mala fides, we may never know. Indeed, no one can compel such an answer from the DPP. That is the sadness of the rule of law, procedure and non-interference!

Burden of proof

Former Youth Fund CEO Catherine Namuye
Former Youth Fund CEO Catherine Namuye

The law places the burden of proof on the prosecution demanding that in bribery claims, nexus be established between alleged bribery payment and the favour sought. It may not be enough to show the presence of unexplained assets. Indeed, for bribery cases, which by and large form an integral part of every corruption allegation, unexplained assets are only categorised under circumstantial evidence which, on its own, may not be enough to see through a successful prosecution. For any corruption case to stand a chance of successful prosecution, tacit understanding needs to exist between two persons where one agrees to offer a certain payment in order to obtain a certain benefit, from a public official acting in their official capacity. Such a benefit is not just a benefit for a specific professional engagement, but rather an undertaking that would constitute a breach of their professional code of ethics.

Most of the time, the only sure way of proving payments is by way of investigation of suspects’ bank accounts. Even then, one does not just appear before a magistrate ex parte and say that they need a warrant to look into a suspect’s account. Such an action must be influenced by reasonable suspicion based on facts that actually existed at the time of adopting the suspicion. And whether the facts actually existed at the time of making the suspicion may only be tested objectively by a court! What is common with Kenya is that many a time there is reasonable suspicion but no facts. But even reasonable suspicion is not enough. Such warrants must be properly obtained and pass the jurisdiction test. A mistake in obtaining a warrant has often times proved fatal to investigations. This was the jurisprudence of Lenaola in “Tom Ojienda T/a Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 Others [2016] eKLR” buttressed by the High Court in Nyeri when it stopped the DPP and the EACC from arresting and prosecuting Murang’a Governor Mwangi wa Iria.

Role of the President

While we complain about the presidency, there is only so much the man can do. That is the sad fact of law. The roles and powers of the President are encapsulated under Articles 131 and 132 of the Constitution. The exercise of these powers has remained a subject of latent ambiguity. More specific to the fight against corruption, the power and role of the President is limited to the provisions of Article 131(1) (b) as read together with the subsequent Article 132 (3) (b&c). Protected within these provisions is the executive power of the President. It is this executive power that consistently evolves to the now (in)famous “executive orders” of the President. As to what really these executive orders are and the modicums of their exercise, our law remains painfully shallow. As Prof Ben Sihanya has argued, and as I indeed do argue, executive powers are basically policy-making powers. An executive order is therefore an order that the President may issue as a means to initiate, influence or direct policy. This interpretation is derived for the role that the executive arm generally plays, that of policy making.

Perhaps in further definition, executive orders are only constitutional when they are concisely on policy matters and not in any way creating or amending law or performing a judicial function in interpretation law, sentencing or punishing. The latter would constitute a blatant disregard of the doctrine of separation of powers. With several modifications, these has been the overall position taken by the Supreme Court of the US – a country with a system of government such as ours. This was the position taken by the Court in “Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)”. The position was slightly varied in “Vermont Yankee Nuclear Power Corp. v Natural Res. Def. Council, Inc., 435 U.S. 519 (1978)” where the Court upheld administrative procedural discretion by forbidding reviewing courts to impose procedures not required by statute. In “Motor Vehicle Mfrs. Ass’n v State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)”, the court called for a reviewing court to overturn agency action for arbitrariness, “…if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

A problem arises, however, as regards the mode of exercise of these functions. While Article 131 foresees a “must” involvement of the deputy president and the cabinet secretaries in the creation of executive orders, Article 132 places such powers exclusively on the President. To the legal honchos, which article takes supremacy? Indeed, can an article of the Constitution supersede a subsequent article?

Accountability

Even after the President issues policy directives, there is really not much else he can do since the only accountability the Constitution envisages is that given per article 95 (5), 152 and 153.

The cancer continues to gnaw upon us; meanwhile we can safely assume that, albeit “slowly”, the investigations continue. Why? The EACC can only stop investigations into a suspect through the process contemplated by Anti-Corruption and Economic Crimes Act Cap 65 in section 25A. Section 25A is very clear that investigations only stop when “a thief confesses and returns his loot” after which:

“The Commission shall publish its intention to make the undertaking by notice in at least two newspapers of national circulation— (a) stating the name of the proposed beneficiary of the undertaking; (b) stating the offence of which the person is suspected; (c) confirming that the person has fulfilled all the conditions set out in subsection (2); and (d) inviting any person with an objection to the proposed undertaking to forward their objections to the Commission within a period specified in the notice.”

Since, as stated, this has not happened the only logical conclusion is that investigations continue and files land on the DPP’s desk every single day. Ironically, for reason best known to the DPP, very few of these files get to court. Simply, the baton seems to be felled at the DPP. That could be our number one enemy in the fight against corruption!

To conclude

Simply put, as long as it does not amount to creating or interpreting law, the President can only say, “this should be done!”. If that is not done, there is nothing else he can do since only the national assembly bears initial powers of removal. Even when removal lies within his mandate i.e. for other presidential appointees, the onus of investigation and prosecution lies solely on the EACC and the courts respectively. Even in this, the complex rules of procedure and the steep thresholds of evidence required in corruption and bribery matters ought not to be forgotten. While we may call for political responsibility, it is important we understand that the concepts of political responsibility only prescribe it as a remedy where the law is unclear on the ways of establishing the actual perpetrators of a wrong. In our instance, there is clear law. The President cannot be politically responsible when there is a body tasked with establishing criminal reasonability in place.

Two-thirds gender rule: What we have missed

previously published on The Nairobi Law Monthly

By Shadrack Muyesu

A provision of the Constitution cannot be declared unconstitutional for the simple reason that there would be no other constitution against which this constitutionality may be assessed. A provision of a constitution may however be construed ambiguous and therefore subject to the interpretation of the court. Even then, though court decisions are legally binding, they may not be conceptually correct” ‒ Unknown

As 2016 ushers in the year of woman, being in celebration of the 30th anniversary of the African Charter on Human and Peoples Rights and the 36th anniversary of the Coalition on Elimination of all Forms of Discrimination against Women, a few curious provisions of our constitution come to fore. Naturally, the gender provisions of the Constitution with regard to the implementation of the two thirds gender rule come to mind. These include Article 27 (3) which states that “the state shall take legislative and other measures including affirmative action programmes and policies to redress any disadvantage suffered by individuals or groups because of past discrimination”; Article 81 (b) which provides that “not more than 2/3 of members of elective public bodies shall be of the same gender”; and Article 177 (b) and 197 which are very explicit that “gender principles must apply in County Assemblies and the County Executive Committee”.

Currently, women only compose 19pc of the National Assembly.
While the question of the implementation of the gender rule continues to stir opinion, several very important observations need to be revisited, alarmingly so, since only a proper answer to these observations can beget the best implementation mechanism of the rule.
The first observation to be made (and indeed a question) is whether the secretariat of any elective or appointive body stands separate from the substantive body. Answered, does the rule by law extend to the secretariat or does it stand fulfilled as long as the substantive body meets it?

Second, is the two thirds gender provision predominantly a women rule (issue) as some, “experts” or otherwise have led us to believe or is it a gender issue and therefore one that matters to all genders, including the “unwanted” Gay Lesbian or Bisexual community?

Third is the most important – or perhaps most petty – of the observations. Ignoring the queries raised above, and as guided by the actual legal definition of the term “gender” vis a vis “sex”, were the drafters of the Constitution in massive error to structure the law as they did or are all efforts to realise two thirds sex ratio in blatant disobedience to the Constitution?

Good practice

The legal definitions of “body” or even “body corporate” do not offer much of an insight as regards the distinction quagmire. Problematically, jurisprudence, within and without on the composition of “body”, or even its relationship with its secretariat, remains relatively thin.

An attempt at this answer may, however, be picked from the courts on the extensively argued matter of the composition of the Ethics and Anti Corruption Commission in relation to its constitutional functions. In “Thuita Mwangi -v- EACC High Court Petition No 153 of 2013” the court opined that functionality of an elective or appointive body cannot be hampered by a vacancy, whether in the secretariat or for the rest of the positions. This position may be taken to mean that a secretariat is only a part of a body whose presence, though integral, cannot have fatal consequences on the general operations of the body. By and large, secretariat is only part of a larger body and not an entity on its own. The court stated:

“…Whereby or under a written law, a board, commission, committee or similar body, whether corporate or un-incorporate, is established, then, unless a contrary intention appears, the powers of the board, commission, committee or similar body shall not be affected by (a)  a vacancy in the membership thereof; or (b) a defect afterwards discovered in the appointment or qualification of a person purporting to be a member thereof.”

A similar position was also adopted in “Ruth Muganda v Kenya Anti-Corruption Commission and Director of Public Prosecutions Nairobi HC Misc. Crim. Appl. No. 288 of 2012” and echoed in “African Centre For International Youth Exchange (ACIYE) & 2 Others -v- Ethics And Anti-Corruption Commission & Another, Petition 334 of 2012 [2012] eKLR”. In holding that the members of the secretariat of the Commission were properly in office, Achode J. in Ruth Muganda, held that:

“[45]…. Thus this Court is alive to the fact that the envisaged transitional period prescribed in the statute could not foresee all transitional challenges, bearing in mind possibilities of litigation as in the case here affecting the appointment of the chairman and therefore assumption of office by members of the Commission. [46] A purposive approach to this issue requires the Court, in the spirit of the Constitution, to promote the continuing and intended objects and functions of the Commission throughout the transitional process as opposed to extinguishing its existence.”

Though hardly explicit, the position of Kenyan courts in this issue may be understandably concluded to mean that the secretariat and the substantive bodies are not separate entities. Reading this position into the two thirds gender issue, it is the position of this paper that the gender rule ought to stand fulfilled if not more than two thirds OF THE SUBSTANTIVE BODY, are of the same gender regardless of the composition of its secretariat. The general practice of invoking the rule when making secretariat appointments apart from the general substantive body is what may be generally termed as good practice. Good practice is not legally binding unless it is in fulfilment of the gender requirement of the entire/ substantive body.

A gender rule, not a woman rule

On a lighter note, quite a lot of disservice has been done to the gender provisions by selling them as women provisions. The general assumption, with the politicians especially, is that only ladies suffer the brunt of gender discrimination – a fallacy. Important too is the interpretation of the gender provision in the gender rules. Everyone, including the courts, the purported custodians of the law, seem to misconstrue this provision by defining gender as a biological existence in being a man or a woman. The correct definition of gender, however, is that it is a social construct hinged on the roles that persons play or the tendencies they exhibit without undue regard to what their physical biology says about them. Should the latter be taken to be the true purport of the gender rule provisions, persons belonging to the Lesbians, Gay and the Bisexual group (persons who have adopted behaviours that do not match their physical sexes) would emerge in consideration when seeking to fulfil the two thirds gender rule. Most curiously, this new interpretation would also change the general perception on the Lesbians, Gay, Bisexual, and Transgender and Intersex (LGBTIQ) communities.

In addition, in line with the social construct interpretation, the gender rule would stand fulfilled when there is the acceptable ratio of “men playing traditionally female roles or women playing traditionally male roles” regardless of whether the entire body is composed of either men or women.

Sceptics would argue that adopting these actions would amount to sanctioning homosexuality. While not wishing to come across as an advocate for the said societies, the Constitution has remained silent on the actual position of these groups though impliedly protecting them through its non discrimination provisions. The Penal Code and the sexual offences act, while criminalising the actual act engaging in sexual behaviour with members of the same sex, does not condemn the homosexual existence. Such persons are therefore exclusively protected as a “third gender” with a right to be considered in implementing the two thirds gender requirement.

According to this interpretation, while having an appointive or elective body composed of both men and women in the prescribed ratios passes as a fulfilment of two thirds gender rule, this is not the only way of fulfilling the rule. “An entity comprising all men with a third of them being openly gay” ought to stand as having passed the Constitutionality test. It is uncontested that an article in the Bill of Rights ought to be interpreted in way that sees the widest application of the Bill of Rights. Invoking an originalist and purposive interpretation of the constitution, surely the drafters wouldn’t have intended that the LGBTIQ be left out when considering the gender rule. Selling the rule, therefore, as a woman rule threatens the LGBTIQ’s right to recognition.

The only problem with the view this article takes is that it leaves the appointing authorities with discretion as to whether to implement the rule in a mixture of men and women or consider the LGBTIQ. An originalist interpretation of the Constitution, however, positions the constitution as a legal document and therefore one to be interpreted according to the wishes of the drafters. These wishes are very clear when the preamble and among others, Article 10 on constitutional values are considered. The legibility of the LGBTIQ to the benefits of the gender rule automatically ceases to be a discretional matter. A properly constituted body should therefore have male men, female women and either a lesbian, gay person, a bisexual a transgender, an intersex or a queer person… Rather complex.

Conclusion

The position of “sex” we have adopted presents such a narrow and simplistic interpretation. It does not recognise the status of the gender status of the gay and lesbian community. Worse, the “sex” position we have adopted has proved difficult to implement thus far. The drafters may have intended that gender and sex be used interchangeably; then why is it that some clauses of the Constitution deliberately mention “sex” and “gender” as say different grounds of discrimination while other clauses, such as the gender provisions quoted above, remain explicit on “gender”?