Post by miguna on Nov 10, 2005 2:12:34 GMT 3
Why such intolerance by Kamau Kuria?
By Hassan Kulundu
GIBSON Kamau Kuria seems to have gotten infected by President Kibaki’s habit of referring to those opposed to the proposed constitution as fools. It is rumored that Dr Kuria is the president’s lawyer, and if that is the case, then it should occasion no surprise that the lawyer has acquired his client’s habit.
In a recent civic education workshop organized by the Law Society of Kenya in Nairobi, the Society’s proclaimed neutrality on the Wako draft came to grief when senior members of the LSK openly took partisan positions over whether or not to support the proposed constitution. It was during that session that Dr Kuria, while declaring his fidelity to the Wako draft, that he referred to those opposed to it as fools.
Ever since the constitutional debate began, Dr Kuria has favoured the presidential structure as the domicile of executive powers over the parliamentary one. Touting himself as a constitutional lawyer, Gibson has spared no efforts to present himself as a scholar with infinite wisdom in constitutional matters. But while we acknowledge his expertise in that branch of law, Dr Kuria must be reminded that he does not have the last word on constitutional matters. He may have the academic mandate to discuss matters constitutional, but listening to him over a considerable period of time leads one to conclude that Gibson lacks the intellectual equipment to understand the jurisprudential grounding of constitutionalism.
It must be pointed out that Dr Kuria’s training as a lawyer only equips him with a sociological understanding of constitutionalism, i.e., constitutions as they are out there. But his training hardly equips him with the philosophical understanding of constitutionalism, i.e., constitutions as they ought to be. Because of this intellectual gap, Dr Kuria should not purport to have the last word on constitutional matters in Kenya.
In view of the foregoing, one needs to point out to Gibson that before he calls anyone a fool, he ought to know that there is a fundamental difference between constitutional making and constitutional law. The former is a process and the latter is the product of the process. At the level of constitutional making, we ideally talk about social contract theories where the process involves constructing a chain of demonstrated truths about governance through a rational calculus of probabilities.
At this level, political scientists, legal philosophers and logicians have an upper hand. The lawyers are ideally relevant after the product is made and has to be applied to specific aspects of life. In fact constitutional lawyers are of good use in situations where constitutional provisions are in dispute.
The sting of the foregoing analysis is to remind Gibson that constitutional making is not a preserve of lawyers alone with a ‘No poaching’ sign erected for other disciplines. To this end, he should not purport to be omniscient in constitutional matters to the extent of declaring other people to be fools merely because they hold learned opinions that are contrary to his level of understanding.
In preferring the presidential system over the parliamentary, Dr Kuria has been known to refer to the presidential system as Republican. But there is every indication that Gibson has failed to understand the conceptual difference between presidential and republicanism. For the benefit of Dr Kuria, it is important to point out that Republicanism is a system of government propounded by Greek philosopher, Plato, in which it is held that any civil society be governed by the best (knowledgeable) of men (the equivalent of Plato’s philosopher kings.) Plato is thus the progenitor of the republican concept and even published a treatise titled Republic to that effect.
Anybody with a casual acquaintance with the Republic ought to know that its theme is essentially a counterpoint to democracy. It would therefore be a conceptual blunder to regard republican and presidential concepts as synonymous. The presidential system simply envisages a chief executive with absolute powers and does not care about how that chief executive comes to power and what qualifications he has. That is why even Parvez Musharaff of Pakistan is much a president as is George Bush of the United States and Mwai Kibaki of Kenya. It would therefore be of much profit to Gibson to understand these concepts first and then order his vocabulary before he calls any other person a fool.
And talking about constitutions, Dr Kuria ought to know that Plato is also the progenitor of the concept of constitutionalism. He also published a treatise to that effect titled The Constitution of the Laws. In this treatise Plato lays the conceptual justification of constitutions; describing a constitution as a body of superior and stable rules devoid of desires.
He prescribed the Constitution of the Laws as a remedy to the pitfalls inherent in Republicanism after realizing that government by the best of men could come to grief if the society fails to ensure a continuous supply of ‘best men’.
He also reckoned that even the best of men can be manipulated to become evil. In this regard, Plato advised in the Constitution of the Laws that society should instead be governed by the best of laws instead of the best of men because the former can stand equal to the exigencies all time and ages better than the latter. The modern constitutional concept thus takes cue from Plato’s advice. Those who still uphold Plato’s original idea of governance by the best of men are known as conservatives and are characterised by fidelity to Republican parties.
If Dr Kuria were familiar with these basic Platonic concepts, then he would stop propagating the misguided maxim that ‘we can change the content of a constitution but we cannot change the structure of a constitution!’ One is at pains to comprehend where Dr Kuria got this idea! There is no credible intellectual opinion in favour of this maxim that Gibson has touted in many forums. One therefore needs to point out for his benefit that constitutions fall under a legal philosophy known as legal positivism, that is, laws made by man for the guidance of man.
Even the most respected legalists of the Analytical School of Jurisprudence like John Austin and Hans Kelsen acknowledge that all positive law and its structures are not infallible and can therefore be changed and even dismantled whenever circumstances demand so. Therefore for Dr Kuria to maintain as he has done that we cannot change the structure of a constitution is a display of mind boggling incompetence in jurisprudence.
And in Gibson’s attempt to promote the presidential system, he has always referred to the American constitution, arguing that it makes the American president an imperial president and yet the United States remains very democratic. But it is ridiculous to suggest that the American president is an imperial one! It is true that the American constitution confers immense executive powers upon the president but all those powers are controlled by Congress. As much as the American president is the Commander in Chief, only Congress can declare war and end it, Congress approves all major appointments by the president, it creates ministries, impeaches the president, it levies taxes, constitutes tribunals inferior to the Supreme Court, regulates commerce and so on.
To know how Congress controls the American presidency, one only has to refer to the elasticity clause that empowers Congress to make all laws necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States or in any department or officer thereof.
In the presence of such clear and effective controls over the American presidency by Congress, it is ludicrous for Dr Kuria to suggest that the US has an imperial president! If anything, the founding fathers of the United States ran away from the alleged imperialism of motherland Britain. It would therefore be absurd for makers of the American constitution to create another imperial ruler for themselves!
The beauty of the American constitution is that it obliges the president to seek the advice of Congress and obliges him to take that advice. The Wako draft has nothing comparable to that.
In this regard, Dr Kuria must not be allowed to roam at large, with his untutored instincts as his only guide, to make wild inferences about constitutionalism. He must therefore not call anyone a fool when he himself has an impeding intellectual desert on these matters.
—The author is a Masters Degree student of Philosophy of Law at the Kenyatta University.
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