The following is a popular but mistaken definition: “A Constitution is a social contract between the governors and the governed”.
This is mistaken precisely because it fails to recognise sufficiently a simple fact. The State’s sovereign power is the collective sum total of individual sovereignty of every citizen.
That is why a people’s referendum was mandatory before enacting a new Constitution. Thus, a constitution is a mutual agreement among the people on how they intend to live together.
It is the people who, inter alia, agree to “donate” their collective power to certain named institutions. The people agree on how those who will serve in these institutions shall be appointed or elected.
They also dictate, through their Constitution, how these officials shall conduct themselves and their offices.
The Constitution is not, therefore, a social contract”; rather it is a directive, a command from the boss (the people), to those entrusted with power.
Once this is appreciated, two things become clear. One, a constitution-making process reduces the way people live or aspire to live, into writing.
The resultant Constitution from such a process is, therefore, valid and operable only to the extent that it truly and accurately captures the people’s will.
Sometimes it may not even be necessary to reduce anything into writing, provided what is called a constitution captures the people’s accepted manifest values, via clear and sacrosanct traditions.
During the implementation stages, Kenyans will inevitably meet the challenges of whether or not we accurately captured the people’s will, their manifest values, or their sacrosanct traditions.
Did we merely borrow from elsewhere and are now attempting to ram it down our own throats?
Two, all residual powers not specifically allocated to any named institution or office, remain with the people. Therefore, although it is the supreme law, the Constitution is not above the people.
This has important implications on some of the implementation challenges we seem to be facing. The best example is the one-third gender rule especially as it relates to an elected Parliament.
We wrote this rule into the Constitution while perfectly aware that it does not manifest how we live or even aspire to live.
The fundamental reason we have not elected more women into public life is precisely because the woman is far too valuable to the family unit to be “donated” to public duty.
Call your own family meeting, be it at the nucleus, the extended or clan level. What chance do you have that the meetings will volunteer one-third women to go for public duty?
The family’s best interests are served by women taking the day-to-day care of the next generation offspring. This is our sacrosanct tradition.
Men help, yes, but they are not at the core of this huge responsibility. That’s why men are first on the line for donation to public duty, and women are preserved for the survival of the species.
In the so called “developed world” where they have changed this arrangement, an unsustainable social dynamic in which they pay women bonus money to have children has evolved.
If Kenyans, in exercising their sovereignty at the ballot, do not collectively obey the one-third rule, it would be manifest that the rule does not reflect the way they live or want to live.
Secondly, in exercise of their residual sovereign power, Kenyans can and will have, de facto realigned the structure of a perfectly legal Parliament.
The outcome of a people exerting their residual sovereign power to reassert how they want to live cannot be unconstitutional.
Mr Ngugi is a consultant on Public Affairs and Policy. ([email protected])