Respect for Constitution goes in tandem with democracy

"However hard you try to evade the justice of men, you will never escape from the justice of God.” Those are the words of Archbishop Charles Scicluna at a church during the funeral of Daphne Anne Caruana Galizia.

He may as well have been speaking to all the countries plagued by corruption. The investigative  journalist was murdered in 2017 to silence her. She had unearthed corruption activities in Malta. Some of her reports implicated senior government officials who got jittery.

The killing of Daphne, by a bomb planted under her car, shocked and stunned democracies in Europe. The fear expressed by many was that such Mafia-like activities were a threat to freedom of expression and democracy.

Recent claims by Chief Justice David Maraga that the Executive is in violation of the Constitution is a concern for our democracy too. Allegations that President Uhuru Kenyatta has declined to appoint 41 judges and incessantly disregards court orders makes one feel worried that such a move could paralyse the Judiciary.

The delay in appointing judges is an affront to justice, both for the nominees and the other citizens. If the issue is credibility of some of the nominees, why not simply prune the ‘unqualified’candidates or disqualify all the 41 and start the selection afresh?

Tension between the Executive and the Judiciary, to the country’s shame, keeps playing out in public. If the frustrations experienced by the Judiciary is such that the CJ feels the need to rely on public support to ‘pressure’ the Executive to accede to its legal mandate, then the country is headed for trouble. There must be synergy among the Executive, Judiciary and Parliament with the citizens’ interest at the heart of their legal duties.

The issue is not more about alleged ulterior motive behind the Executive’s circumvention of the Constitution, if any, but whether there are benefits accruing to Kenyans through usurpation of the law. The answer is none. The ruling class, including their families, have sought — and continue to seek — the help of the courts on legal matters. Which is proof that the Constitution is there to look after the rights of everyone, including the ruling class and the lowliest of the citizens.

The Constitution cannot continue to stand for all if a few take a hammer to it and, for selfish reasons, chisel off the bits they do not like. A few cannot also hold the rest of the country to ransom by constantly allowing for wanton disregard of court orders.

The Executive has been accused, time and again, of failure to comply with court orders even when issued to save the lives and properties of the citizens they serve. Disregarding court orders and, by extension, the rule of law is a slippery slope to anarchy.

A court order is not issued for fun; it is an important legal document. It enumerates very crucial steps that need to be taken in a judicial process. People’s lives depend on them. They are right-laden for both parties in a dispute.

Not respecting them is a clear indication of tolerance of impunity by disputing parties or those in power. No wonder, constant disregard for court orders by the Executive has set such a terrible precedent that any crook who grabs someone’s land or embezzles public funds can sit pretty knowing there are no consequences to breaching judges’ decisions. That way, corruption festers even within the corridors of justice, where obtaining fake court orders has become the norm.

Disobeying court orders is nothing less than sheer corruption. Those who were in contravention of the law yesterday are today’s heroes and law-abiding citizens have been turned into villains.

It is justified to ask whether the President is ever given correct legal advice by those tasked to do so, such as the Attorney-General. As the chief legal adviser to the President — and, indeed, the government — the Office of the Attorney General bears the largest share of the blame on the unnecessary tension between the Judiciary and the Executive. Some of the contentious legal issues could easily have been dealt with by this office before it led to bad blood between the various arms of government.

If the rest of the legal fraternity could share in the true spirit of the Constitution and fight to preserve it, I fail to see what inspires the AG’s office to advise on unjustified dissenting stances on issues of national importance that tally with the law.

Any government that does not follow the law should not expect the citizens to do the same. If governments led by good example, they might discover that it is easier to govern law-abiding citizens than rebellious ones.

Let the Constitution reign supreme by keeping intact the mandates of the three arms of government. The support for the Judiciary through capacity building and funding is to everyone’s benefit and crucial for our democracy.

Ms Guyo is a legal researcher. @kdiguyo