By Alex Kaindo & Miriam Maina
(1.) Sovereignty
of the People:
Let us first consider the definition of
‘Sovereignty’, the word. Sovereignty (the noun) is derived from the word sovereign
(an adjective), which means: “the highest power in a country as vested in a
particular person or institution[1].”
Sovereign has also been referred to as: “(of an authority) possessing supreme
or ultimate power[2].”
Going by the aforementioned, Sovereignty of
the People is therefore a Constitutional Law Principle which denotes the
following:
(a)
All power governing the state;
(b)
The supreme political authority inherent
therein;
(c)
Intimately intertwined with the people’s
inalienable will;
(d)
Wielding the ultimate control of the
constitution and having the final say in the frame of government, up to and
including its administration;
(e)
The self-sufficient source of political power,
that is, the populace, from whom all such specific political power is derived.
Sovereignty of the people as a Constitutional
Law tenet may further be understood by considering another alternative
definition of which is best brought out by viewing the said notion as a concept
at times (more often than not) synonymous with the term Popular Sovereignty, pioneered by Jean-Jacques Rousseau and other
legal philosophers. Popular Sovereignty is described thusly: “a system of
government in which policy choices reflect the preferences of the majority of
citizens.[3]”
Consequently, the basis for Sovereignty of the
People lies in honouring the precept that when people surrender to the state
their right to exclusively govern themselves, in exchange for proper
representation in that respect, the government becomes the citizenry’s agent
for such purposes. For instance, this right (called universal suffrage for the purposes of this write-up, that is,
one’s right to vote) is exercised by
the Kenyan people every five years as per their constitutional entitlement protected
by law[4]. The
government’s power as a result is not absolute; but more accurately, it is to
be executed, as a matter of fact, in such manner as would lead to the necessary
accountability of government to the people since it is they that established
the state as well as its constituent organs in the first place. In other words,
state power must be used by government to realize the will of the people, ergo
the phrase ‘Vox Populi, Vox Dei’ [5](the voice of the
people is the voice of God) gels perfectly well with our understanding of
Sovereignty of the People, which in our opinion otherwise put means “Rule by
the People”.
Even in the constitution-making process of
Kenya that led to the 2010 Constitution, the input of the general public was at
the forefront of the agenda, right from Civic
Education through the Referendum and
all the way to the Promulgation that
took place on 27th August 2010 overseen by then President Mwai
Kibaki. There couldn’t have been a more evident example of Sovereignty of the
People in Kenya than at such a time. Be that as it may though, the previous
constitution for its part could hardly be said to be as reflective of this
principle, since from its beginnings as the independence constitution of 1963,
which protected only vested interests of certain political groups ( that is,
the Maasai Ethnic Communal Land Rights, Somali secessionist groups in the
Northern Frontier, the autonomy plight of Arabs inhabiting the 10-mile Coastal
Strip, KANU the representative of the Kenya’s largest tribes at the time of
independence, KADU the representative of minority communities rights and European
settlers’ demands for property rights[6]) which resulted constitutional
‘mutilations’ made for the
Executive’s political expediency in
order to stifle any form of opposition. Jomo Kenyatta and Daniel Arap
Moi, the first two presidents of Kenya sought many opportunities to use
parliament as a tool for creating constitutional amendments in order to expand
their executive power and establish presidential dictatorships.[7]
Sovereignty of the People is uniquely related
to the core attribute of a constitution called AUTOCHTHONY, which is an
English word derived from its Greek equivalent which literally means: ‘springing from the land[8]’.
This is a Constitutional Law principle which dictates that for a constitution
to be legitimate it must have been derived: “…from their [a people’s] own native traditions.[9] Alternatively said, it implies that the: “… home grown nature of constitutions, gives them authenticity and effectiveness.”[10] In other words the sense of having a single national identity is what defines the sovereignty of the people. A consequence of this principle is that a constitution cannot then be deemed to be autochthonous without utterly putting the people’s say and interests first, in such a way that it comes from their very roots, aspirations, ideas, beliefs, values and views as to how they intend to be governed, so much so that they can derive a true unadulterated sense of belonging from to a nation state governed by it. A good example of this kind of a constitution is the Kenya Constitution 2010; constitutions which we believe even the late Abraham Lincoln (16th President of the United States) himself, if he were with us today, wouldn’t hesitate to term it as one envisioning a: “…government of the people, by the people, [and]
for the people[11].”
The text of what we know today as the United States Declaration of Independence[12] has
throughout its fabric the concept of Sovereignty of the People engendered in
all its parts, namely:
1) introduction;
2) preamble
3) indictment;
4) denunciation; and
5) conclusion.
Let us now have a look at what provisions in
the Kenya 2010 Constitution exhibit this concept of Sovereignty of the People.
They include:
i)
The Preamble:
-
the
third, fifth, sixth, seventh and eighth paragraphs.
ii)
Chapter One:
-
Articles
one, two and three of the Constitution.
iii)
Chapter Sixteen:
-
Unlike
the 1963 constitution Kenya’s new constitution significantly limits the
parliament’s ability to pass amendments by requiring the President to request
the IEBC to conduct a national referendum for the approval of a parliamentary
bill advocating for a constitutional amendment before he can assent to the
bill.
-
Kenya’s
new constitution cannot be amended without a national referendum and in this
the citizens of Kenya exercise their sovereignty through their refusal or
approval of constitutional amendments.
iv)
Article 94:
-
Especially
clauses one and two.
Lastly, Dicey[13] vehemently claims
that “the electorate is in fact the sovereign of England.” The whole people act
through a “supreme legislature” whose conduct is “regulated by understandings
of which the object is to secure the conformity of Parliament to the will of the
nation.”[14] He
goes on to say that all the conventions that uphold the supremacy of the House
of Commons in practice uphold the ‘sovereignty of the people’[15].
These two excerpts illustrate further
that even in states where Parliament is supreme, for example in England,
the people’s residual powers to whom all resort is made and from whom all power
emanates is still acknowledged as sovereign
(2.) Parliamentary Supremacy:
Also known as Sovereignty of Parliament,
Supremacy of Parliament is defined as: ‘the constitutional principle that the
legislative competence of Parliament is unlimited’.[16] In relation to the British
constitutional tradition (which exclusively hinges upon all its pieces of
legislation as an uncodified example of a constitution), sovereignty of parliament
implies that parliamentary enactments bind all those they affect and are to be
upheld conditionally by the other organs of government. A.V. Dicey in his book The Law of the Constitution,[17] gave a classical exposition of this concept. His account
has since been the starting point for discussions on this feature of the
British legal system which he identified as ‘the very keystone of the law of
the constitution’. According to him, the nature of parliamentary sovereignty is
such that:
“Parliament…has…the right to make or unmake
any law whatever, and further, no person or body is recognized by the law of
England as having the right to override or set aside the legislations of the
parliament[18].
The Kenyan Constitution is unequivocal on the
extent of sovereignty of parliament as defined by Dicey above. For instance an
undoubted inference of the sovereignty of parliament in Britain is that
parliament is entrusted with the sovereign law-making power. On its part the Kenya
Constitution defines the role of parliament in Article 94 (1) and (2).The US
Constitution by contrast is more certain on the legislative power of Congress
as found in Article 1, section 1.
By merely defining the manner in which the
law-making powers are to be exercised, the Kenya Constitution proceeds on the
assumption that the repository of legislative power is parliament and that all
that is necessary is a detailed description of the legislative procedures. This
is explicable upon recourse to Kenya’s history: firstly by the country’s
colonial association with the British tradition (which rests squarely on the
doctrine of parliamentary sovereignty); and secondly by the country’s long
association with a legislative council.
What arises from the aforementioned is that
Kenya’s constitutional set-up on sovereignty of parliament differs from that
defined by Dicey. Much as the Kenyan Parliament has the mandate to make laws
amending the constitution, this duty is not absolute as the laws can be struck
down by the judiciary in the exercise of
its powers based on Art. 2 of the constitution. It is also dubious whether the
legislative mandate is monopoly of parliament, as evidenced by the 2010
referendum.
(3.) Constitutional
Supremacy
Constitutions are written for the express or implied purpose of
creating a body of laws that separate and limit the powers of each of the three
branches of government; the executive, the judiciary and the legislature. The
first written constitution was made by the United States in 1787 based on the
legal principles of European philosophers such as Baron de Montesquieu who
advocated and elaborated the principle of separation of powers.[19]
One of the essential elements of constitutional supremacy is the
separation of power. According to Montesquieu allowing a governmental officer
to simultaneously possess the powers of the judiciary, executive and
legislature would lead to the suppression of individual liberties and to the
rise of oppressive violence. Without the separation of powers any one
governmental officer can eventually accumulate enough power to exercise his
personal will and set himself above the laws of the nation. This principle
prevents the personal rule of individual politicians such as Kenyatta and Moi from
overcoming constitutionalism; the enforcement of the laws created by the
constitution. Constitutional supremacy connotes the constitutions legal
superiority to all other sources of law including the three branches of the
government. To ensure constitutional supremacy most nations specify within
their constitutions the legal superiority that their constitutions possess over
all other sources of law. In the American constitution for example the Article
6; Clause 2, called the supremacy clause the constitution in addition to
federal laws take precedence to state laws and all judges are bound by the laws
of the constitution.[20]
In Kenya’s 2010 constitution Chapter 1 Article 1 states that; “All sovereign power
belongs to the people of Kenya and shall be exercised only in accordance with
this Constitution.” The people of Kenya cannot use their sovereignty to violate
the human rights of individuals. By limiting the power of the sovereign
constitutional supremacy creates what professor Nwabueze calls constitutional
democracy which he believes should prevent the majority from infringing the
rights of the minorities.[21] Much like America’s
supremacy clause Articles 2 and 3 of Chapter 1 of Kenya’s 2010 constitution
elevate the legal authority of the constitution above all other sources of law
in Kenya and Article 3 in particular states that any attempt to establish a
government not in compliance with the rules of this constitution will be deemed
unlawful there the government of Kenya cannot legally set itself above the laws
of the constitution and legally make laws that contract the constitution.
REFERENCES:
- AV Dicey, The Law of the Constitution, Ch. II pp. 36-39;
- De Smith Ch. 4 pp. 73-82;
- Ghai & McAuslan Ch. 5;
- Ojwang (1990) Ch. 5;
- Ghai Y. P. (1993) “Constitutions and
Governance in Africa.”;
- Ojwang J. B. (1981) “Legislative Control
of the Executive Powers: A Comparative Study of the British and French –
Derived Constitutions of Kenya and the Ivory Coast”, Ph.D Dissertation,
Cambridge , UK;
- Constitution of Kenya (2010).
- Nwabueze B. Constitutional Democracy in Africa, Volume 1
[1] MACMILLAN English Dictionary
(International Student Ed.).
[2] Concise Oxford English Dictionary
(11th Ed.).
[3] Black’s Law Dictionary
(pdf/scanned online version)
[4] Constitution of Kenya 2010, Art.
38.
[5] Concise Oxford Dictionary of
Quotations, uie 3rd ed., OUP, 1993 (William of Malmesbury)
[6]
Ghai & McAuslan, Public Law and
Political Change in Kenya (first published 1970, OUP) Ch.
5, pp. 184-89.
[7] Kivutha Kibwana, When the Constitution Begins to Flower,
pp. 13-16.
[8] http://www.questia.com/PM.qst?a=o&d=1534972, last accessed September 13, 2010.
[9] Wheare, Kenneth (1960). The Constitutional Structure of the Commonwealth. Oxford: Clarendon Press. p. 89.
[10] http://www.nou.edu.ng/noun/NOUN_OCL/pdf/Law%20243.pdf , page 7; last accessed January 7, 2008.
[9] Wheare, Kenneth (1960). The Constitutional Structure of the Commonwealth. Oxford: Clarendon Press. p. 89.
[10] http://www.nou.edu.ng/noun/NOUN_OCL/pdf/Law%20243.pdf , page 7; last accessed January 7, 2008.
[11] President Abraham Lincoln,
The Gettysburg Address (Nov. 19, 1863), in THIS
FIERY TRIAL: THE SPEECHES AND WRITINGS OF
ABRAHAM LINCOLN 184, 184 (William
E.
Gienapp ed., 2002).
[12] Becker, Declaration of Independence, 5
[13]
A.V. Dicey, Introduction
to the Study of the Law of the Constitution, (1915 Edition) Indianapolis:
Liberty
Fund,
1982.
[14]
Ibid. pp. 285-86.
[15]
Ibid. pp. 287.
[17]
A.V. Dicey, Introduction
to the Study of the Law of the Constitution, (1915 Edition) Indianapolis:
Liberty
Fund,
1982.
[18]
Ibid. Part I: The
Sovereignty of Parliament, Ch. 1: The Nature of Parliamentary Sovereignty,
para. 4.
[19] Baron de La Brède et de Montesquieu, Spirit of the Laws, (First published in 1748)
[21] Ben Nwabueze, Constitutional Democracy in Africa, Volume 1, (1986)
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