Principles of a constitutional democracy.

Rule of Law

WHAT ? The rule of law (also known as nomocracy) generally refers to the influence and authority of law within society, especially as a constraint upon behavior, including behavior of government officials.This phrase is also sometimes used in other senses.

WHO & WHEN?  It was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. However the principle was re-developed by the international commission of jurists, known as the Delhi declaration 1959, but was later on confirmed in 1961.

Where? In Lagos Nigeria

Why? because order is better than anarchy

How? (Manifestation of the doctrine) Mumo Matemu saga.

(1)        The historical and political context against which leadership and integrity principles are entrenched in the Constitution of Kenya (2010) leave no doubt that a new constitutional ethos has been called forth. This summon to a new normative order is perhaps the touchstone of our constitutional founding. Its embodiment is the increasing public quest for and discourses on ethics and integrity in governance and leadership. Its other emblem is the emergence of pleas for judicial intervention to interpret, enforce and breathe life to the values and principles that permeate the edifice of our Constitution. One such instance is this case, which arises from the decision of the High Court (Joel Ngugi, Mumbi Ngugi, G.V. Odunga, JJ.) delivered on 20th September, 2012 at Nairobi in Petition No. 229 of 2012. In that case, the High Court upheld a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu, the interested party therein, and appellant herein, as the chairperson of the Ethics and Anti-Corruption Commission. This is because there were unanswered questions as to the integrity of Mumo Matemu.

CONSTITUTIONALISM

WHAT? This is the doctrine that emphasizes that the rulers of a state and the governed follow the constitution to the latter, it is the behavior of following the spirit of the constitution word by word and not excluding anything.

WHO & WHEN? John Locke and Thomas Hobbes are among the few of philosophers who interrogated the concept of the constitutionalism, though they never addressed it directly. They conceptualized the idea of the social contract.

A social contract, they argued, is the agreement between the government and the governed where the governed cede some of their rights to the government in exchange for protection, peace and order. This means that both parties to such a contract should not act against their agreement in the contract, which in the case is the constitution .the actions by the government and the people in a state should be in accordance with the letter and spirit of the constitution.

The idea of a constitution as a contrivance which not only describes but confines government, at least in its everyday activities. The argument for such confinement was stated by Alexander Hamilton in The Federalist: "In framing a government which is to be administered by men over men, the greatest difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

WHY-the culture of respect for the rule of law, by the states organs and a system of courts that may protect group and individuals against the abuse of power,

How(Manifestation)?

constitutionalism manifests every day when the constitution is followed an example is when followed he law, in this instance the executive the president had proposed Visram as the chief justice contrary to constitutional provisions on the election of the chief justice, the appointment was reversed and the chief justice was selected according to the constitutional process provided and constitutionalism was forced onto the executive.

  SOVEREIGNTY OF THE PEOPLE

WHAT? Popular sovereignty or the sovereignty of the people is the principle that the authority of the government is created and sustained by the consent of its people (Rule by the People), who are the source of all political power.

WHO & WHEN ?  Abraham Lincoln who said that democracy is a government of the people, for the people and by the people

It is closely associated with republicanism and social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality. It is usually contrasted with the concept of parliamentary sovereignty, and with individual sovereignty.

Benjamin Franklin expressed the concept when he wrote, "In free governments, the rulers are the servants and the people their superiors and sovereigns

WHY? The social contract theories state that people gave up some rights and freedoms to get into a government or rather a civil society hence the power of the government originates from the people and hence the rulers are servants of the people.

HOW?(Manifestation)

Njoya & others v the AG

The constituent power of the people and its implications

 Prayers 1, 3 and 12 of the originating summons are predicated on the premise that the applicants have along with other Kenyans what is called a constituent power to participate in the making and adoption of a new Constitution of Kenya by the machinery of a constituent assembly and a referendum. Their contention is that such power is inherent in them as part of the sovereign people of Kenya and that such power has been vitiated, diluted and transgressed by the provisions of the Act to the extent that the NCC is not a constituent assembly, as they understand it, and there is no provision for a compulsory referendum on the final draft Bill prepared by the Constitution of Kenya Review Commission. All this calls for an appreciation of what is the constituent power of the people. The most elaborate definition we were supplied with is by BO Nwabwezi, a leading constitutional scholar in Commonwealth Africa. In his book entitled Presidentialism in Commonwealth Africa L Hurst and Company (1974) the author writes at 392:

The nature and importance of the constituent power need not be emphasized. It is a power to constitute a frame of government for a community, and a constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people's sovereignty. Sovereignty has three elements: the power to constitute a frame of government, the power to choose those to run the government, and the powers involved in governing. It is by means of the first, the constituent power that the last are conferred. Implementing a community's constituent power, a constitution not only confers powers of government, but also defines the extent of those powers, and therefore their limits, in relation to individual members of the community. This fact at once establishes the relation between a constitution and the powers of government, it is the relation of an original and a dependent or derivative power, between a superior and a subordinate authority. Herein lies the source and the reason for the constitution's supremacy.

With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgement that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of the Republic is the sovereignty of its people. The Republic is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All governmental power and authority is exercised on behalf of the people. The second stop is the recognition that the sovereignty of the people necessarily betokens that they have a constituent power - the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution. Indeed it is not expressly textualised by the Constitution and, of course, it need not be. If the makers of the Constitution were to expressly recognise the sovereignty of the people and their constituent power, they would do so only ex abundanti cautela (out of an excessiveness of caution). Lack of its express textualisation is not however conclusive of its want of juridical status. On the contrary, its power, presence and validity are writ large by implication in the framework of the Constitution itself as set out in sections 1, 1A, 3 and 47. In that regard I accept the broad and purposive construction of the Constitution canvassed by counsel for the applicants. I accept that the declaration of Kenya as a sovereign republic and a democratic multi-party state are pregnant with more meaning than ascribed by the respondents. A sovereign republic is a sovereign people and a democratic state is one where sovereignty is reposed in the people. In the immortal words of Abraham Lincoln, it is the government of the people, by the people, and for the people. The most important attribute of a sovereign people is their possession of the constituent power. And lest somebody wonder why, the supremacy of the Constitution proclaimed in section 3 is not explicable only on the basis that the Constitution is the supreme law, the grundnorm in Kelsenian dictum; nay, the Constitution is not supreme because it says so: its supremacy is a tribute to its having been made by a higher power, a power higher than the Constitution itself or any of its creatures. The Constitution is supreme because it is made by they in whom the sovereign power is reposed, the people themselves. And as I shall in due course demonstrate the powers of Parliament under section 47 of the Constitution are a further recognition that the constituent power reposes in the people themselves. In short, I am of the persuasion that the constituent power of the people has a juridical status within the Constitution of Kenya and is not an extra-constitutional notion without import in constitutional adjudication

Separation of powers

WHAT?  This is the doctrine that demands that all organs of government be separate and carry out their duties independently so as to effectively serve/govern the people.

WHO?it is associated with the French jurist Montesquieu who stated in his book spirit of the laws that when the legislative and executive powers are united in the same body there can be no liberty, again there is no liberty if the judiciary power be not separated from the legislative and executive. Where joined with the legislative the life and liberty of the subject would be exposed to arbitrary control ;for the judge would become a legislator, were it joined with the executive then the judge might behave with violence and oppression. There would be an end to everything if the same man or body excercises those three powers of the state.

WHY? so that the people can be efficiently and fairly governed effectively by the three arms of government and so as to avoid a tyrannical rule

HOW? by the judiciary, legislature, executive all being independent respectively

Manifestation? Some time back the president appointed the chief justice to head a commission known a the Kenya Anti-Corruption Commission, the running of this commissions fell under the mandate of the executive and hence the president appointing a judge to chair a commission that is to be chaired by a member of the executive was found to be inconsistent with the doctrine of separation of powers and hence the ruled the appointment as null.

RESPONSIBLE AND ACCOUNTABLE GOVT

WHAT? In ethics and governance, accountability is answerability, blameworthiness, liability, and the expectation of account-giving. "Government accountability means that public officials - elected and un-elected - have an obligation to explain their decisions and actions to the citizens. Government accountability is achieved through the use of a variety of mechanisms - political, legal and administrative

WHY? Designed to prevent corruption and ensure that public officials remain answerable and accessible to the people they serve. In the absence of such mechanisms, corruption may thrive."

WHEN? Early origins of responsibility can be traced back to ancient England where royal wills bore the royal seal and were applied by ministers hence for every exercise of power a minister was answerable.

HOW? Kenya has set up commissions such as the K.A.C.C which is to detect and prevent corruption through holding people in govt positions as being answerable. the J.S.C which monitors the conduct of judges

Collective responsibility is a concept or doctrine, according to which individuals are to be held responsible for other people's actions by tolerating, ignoring, or harboring them, without actively collaborating in these actions.

Transparency and accountability are core national values and principles as stipulated in Art 10(2)(c). there are various constitutional provisions which aim at enhancing transparency and accountability. Art 243 establishes  the National Police Service whose functions under Art 244(b) is to prevent corruption and promote and practice transparency and accountability. Art 179 establishes an independent Ethics  and Anti-corruption Commission which shall ensure promotion of the principles of leadership and integrity.

In the case of Rebecca Kerubo V.Nancy Baraza (2012) it was shown that a public officer must behave in a manner that promotes human rights, human dignity and integrity making the Deputy Chief justice lose her job for gross misconduct

Sometime back when the former minister for foreign affairs Moses Wetangula was being suspected as having embezzled money for constructing embassies abroad for the country, was urged to take political responsibility and step aside to pave way for investigations.

PARLIAMENTARY SUPREMACY

WHAT? Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies in terms of making law. The concept also holds that the legislative body may change or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a constitution) or by precedent

Who? A.V. Dicey  wrote in his book Introduction to the Study of the Law of the Constitution (1885)Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the "King in Parliament", and constitute Parliament. The principle of Parliamentary sovereignty mean neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

WHY? Supremacy can be described as 'the supremacy of the political party holding most common seats'. The members that make up the parliament are all elected and have the power to determine policy and therefore have political sovereignty; this refers to parliament being the highest source of English Law

HOW? Parliament can make laws concerning anything.

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker. except in the event that it is inconsistent with the constitution.

Manifestation ; for a very long time now the Kenyan parliament has been passing bills to increase their wages from time to time, this has of course not been acceptable in the public eyes, but regardless of the demonstrations that the people participate in to oppose such bills parliament always finds a way to pass them and nothing can be done to them or stop them as they are the supreme law making body

CONSTITUTIONAL SUPREMACY

WHAT? Constitutional supremacy definition is that the constitution is upheld above any law or legislation. A law that is passed cannot violate constitution rights. If a law is passed that violates the constitution then it can be taken to court and contested as unconstitutional.

WHO? This is evident with the social contract philosophers such as John Locke, Thomas hobbes, who emphasized that the social contract between the governing and the governed is the constitution hence must be respected and upheld at all times.

WHERE? Under article 2 of the  Kenyan constitution.

WHY? This is because the constitution is the contract between the governing and the governed, it is the sacred law through all which other laws obtain their validity. Hence must be respected and upheld to the core.

. In Crispus Karanja Njogu v Attorney-General (criminal application 39 of 2000), a three judge bench of this Court had this to say on constitutional interpretation.

We do not accept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament. The Constitution is not an Act of Parliament. It exists separately in our statutes. It is supreme ... it is our considered view that, constitutional provisions ought to be interpreted broadly or liberally, and not in a pedantic way, that is restrictive way. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the Constitution, of necessity, has principles and values embodied in it; that a Constitution is a living piece of legislation. It is a living document.

And later on in the same ruling, the Court said:

We hold that, due to its supremacy over all other written laws, when one interprets an Act of Parliament in the backdrop of the Constitution, the duty of the Court is to see whether that Act meets the values embodied in the Constitution.