From: People For Peace
Voices of Justice for Peace
Regional News
BY FELIX KASOMO
NAIROBI-KENYA
TUESDAY, JULY 10, 2012
For a long time Kenyans have been discerning to know what really makes it difficult for them to hope for a better future. It is natural that even the most desperate person looks forward for a better future. This human perception cuts across people of all walks of life; the rich and the poor alike. The big challenge here is whether they can achieve this dream.
[image]political cartoon from The Std by Gammz; The more things change the more they stay the same; Graphiti painters; UK arts paints Change; Tinga Gonio paints Reform ;
Cartoon courtesy Standard Newspaper
At first Kenyans thought that the stumbling block to this better Kenya was one party political system. When multiparty system was introduced in 1992 it was deemed that this would bring a new dawn.
To their surprise, instead, politicians got a new avenue to get wealthier, as common man felt more weight on his or her shoulders more than ever before. The blame had to shift further; the second stumbling block was assumed to be the now old constitution. And, the journey to get a new constitution got hotter than ever before.
When I think of the endless meetings I used to witness at the Bomas of Kenya early this millennium, now that we have new constitution some politicians are trying to derail its implementation.
My dear people a new constitution for a country is a good thing. But for Kenyans, who are politically conscious, know that the fruits of your new law of the land may not mature and bring the Kenya where equity is reflected.
Allow me to remind you that man cannot be made good by law. Law itself has issues. In addition, unless motivated by strong moral values, human beings can still opt to break it irregardless of the consequences.
Worse enough for an ordinary person, at face value, a law is very seductive to desires of people more than a young lady before the eyes of a man who is not emotionally balanced. Unable to see the hidden flaws which make such a lady unfit to be ones wife.
This is what your new constitution may turn to be if your political leaders and the self proclaimed learned friends fail to make a U-turn to show more desire to become martyrs of justice.
Collectively as Kenyans you set very high political expectations. Just to take you back, remember how in 2002 you thought Kibaki’s government was serious enough to curb problems associated with political malpractices. To your disappointment this was not to happen. Consequently your hopes got sick.
A sharp pointer to the fact that the problem is not: one party system, multiparty system, old law or even the new law. The problem is lack of love, respect for dignity of the poor, and low moral content in the characters of some of your political leaders.
Talking of a new constitution, in the hands of the law breakers, of the old Kenya you all know. Let us journey together and analyze the strengths and shortcomings of a law in general, an element of law which may crush your expectations, which you have entrusted in the hands of people who careless about you. However, I cannot stress enough; a good law is a blessing to a country courtesy of its functions in the society; not excluding Kenya.
Basically Law has four functions in the society. It helps the society in the attainment of its common goal-purpose, or common good. Law brings stability to the society, providing good order, reliable procedures and predictable outcomes. It creates harmonious transition in leadership thus avoiding many conflicts and wrangles.
Law is to protect personal rights, provide avenues of recourse and redress of grievances and means for the resolution of conflicts. Law assists in the education of the community reminding everyone of its values and standards.
The above functions of law in the society are well reflected in the letter of your new constitution and I think that is what has inflated many Kenyans with hope of a better Kenya than the one born and breast fed by Kanu between late 70’s and early 2000. Let me share this secret with you, Kenyans who think law alone can make this nation a minor heaven, are out to be surprised. Because law does not function the way we who are pedestrians in matters of jurisprudence take it.
Law can pose several challenges when it comes to handling concrete cases. That is one reason why we are witnessing several draw backs as the legislators attempt to formulate various bills to make the new constitution practical. In the same line of thought, politicians and lawyers of little faith feast on this weakness of the law.
Just to set an example. According to its proper nature, law is general. That is to say it refers to the whole class or series of similar cases. Forinstance, a law can forbid stealing in general but remain silent about the best legal procedure in case where a subject steals a banana-a particular case.
This property makes law to look to what happens more frequently in life and not to what happens occasionally. Even though laws are born of a particular experience either to promote a particular act or to discourage it, it cannot regulate the past but the future.
One of the general rules in interpreting legal texts requires that one cannot apply general provisions of the constitution to a matter in a way that is inconsistent with specific provisions of the constitution on the same matter. For instance law cannot provide for right to life and allow abortion in another section of the same constitution.
Because of the general nature of law, it is quite impossible for the letter of a given law to measure the rightfulness or wrongfulness with adequate precision. In order to apply law to each situation with precision, one must apply not the letter of the law but the spirit of law.
In simple language this is what the self-proclaimed learned friends refer to as interpretation of the law. Then we hear them quoting the same article of law and say ‘the cases should be heard here in Kenya’ while another school of the same learned friends quote the same article and argue ‘the cases should be heard in The Hague’. To an ordinary fellow this is absurd. But to a learned friend this is a job hunting tactic.
Dear unlearned friends, more so Kenyans, in order to apply law to each situation with precision, one must apply not the letter of the law but the spirit of law-or the precise interpretation of law. The spirit of the law which refers to what the law was intended to regulate, which always goes beyond the letter of the law. it should be the compass to offer direction in any legal endeavor.
This is the point at which politicians find themselves at longer heads with the judiciary and desire all the more to control it. At this stage of getting the spirit of the law, judicial independence can measured, especially when handling cases touching the mighty in the society. In my opinion this is what had brought Kenyan judicial system to its knees; impartial pursuance of the spirit of the law was lacking.
Just application of law requires, therefore that one who applies law must discover the spirit of the law. Which means law must bend in accordance with the sinuosity of the case without breaking it. Unfortunately those who should uphold this principle are interested to know the weight of your wallet more than the spirit of the law.
Consider a case in which a politician steals billions of shillings meant for national hospital insurance fund, and another one where a grandson steals ten shillings meant for supper. Both cases are generally stealing which is a crime in law. But they are particularly different. To mean they cannot be accorded the same legal weight unless the judicial system is rotten. In such a case the spirit of the letter of the law takes precedence.
Another element of the concept of law is imperativeness. This is the aspect of law which makes it so attractive to the masses. You remember the haki yetu (our right) mentality witnessed nowadays in Kenya? It is informed by this aspect of law. Imperativeness of law refers to the capacity of law to grant one subject the capacity to demand and to another the duty to oblige. This imperativeness can either be positive or negative.
It is positive when it imposes on a subject accomplishment of a determined act. And, it is negative when it imposes omission of an act on the subjects. For instance a law is imperatively positive when it allows over 18s to take alcohol from ten in the morning till a specified time. It becomes imperatively negative when it forbids over 18s from taking beer before ten in the morning.
When law imposes on a subject accomplishment of a determined act, it at the same time imposes a duty on the other subjects to omit actions that are incompatible with the actions that are imposed on the other subject and vice versa at the same time. Whether prohibitive or perceptive, law always positively commands its subjects to its obedience. Unfortunately your politicians prefer to be above this command of law. Hence fail in leading by example rather than by misinformed rhetoric.
The concept of law is essentially coercive. This property is deduced from the logical nature of law. By nature law sets subjects against each other, attributing to one the faculty to demand (think of haki yetu demonstrators asking for the Kenya you want) and to other, the faculty to a duty (think of the duty of your politicians to make the Kenya you want).
The coercible nature means that if the limitation of law on the two subjects is not observed and if one subject, contrary to the limitation of law invades the sphere of the juridical power which the law assigns to the other; within this sphere there arises the possibility of rejecting the transgression.
For example when the law enforcers attempt to disperse innocent nationalists meeting peacefully in Limuru for a political rally, the nationalists have to resist because they know what the new law has assigned them and what it has assigned the law enforcers. Then the meeting goes on after a few weeks of shame to your brothers expected to enforce a law they may not understand.
Materially speaking coercibility (forcibility) is not possible because if one does not want to do something the person cannot be coerced to do it. That is why robbery is a crime in law. But robbers have made it a career and keep on robbing you irregardless of the existence of law prohibiting robbery.
This puts you on the best flat form to understand that a new constitution drafted by the best draftsmen in the world is not enough to bring joy in your broken heart. The best law is written in your heart, a law, which was promulgated, when you attained the age of reason and is still in you.
It helps you to know what is good and what is bad. It knows no religion or nationality, tribe or race. This is the only law which can unite the poor and the rich to establish the Kenya you want; this is simply the law of love which no policeman can enforce; a law in need of no other law.
Fr Joachim Omolo Ouko, AJ
People for Peace in Africa
Tel ?7350-14559/?722-623-578
E-mail omolo.ouko@gmail.com
Peaceful world is the greatest heritage
That this generation can give to the generations
To come- All of us have a role.