Constitutional Law May be deemed elusive and immaterial when the constitutions in Consideration are either dead, hogwash and unrealistic. Critically analyze the above statement using relevant case law and statutory provisions.
In looking at the above statement, I will attempt to define constitution, Constitution Law and constitutionalism and try to look into how the governments of the world especially Africa and the West, more specifically Kenya and the United states of America have tried to uphold constitutionalism and on the other hand how lack of it has brought the disregard of the constitutions by in most cases, the ruling elites and hence the statement” Constitutional Law May be deemed elusive and immaterial when the constitutions in Consideration are either dead, hogwash and unrealistic”.
A constitution is a set of laws either written or unwritten that govern the relationship between the different organs of a government that is the Executive, Judiciary and the Legislature and the relationship between the government and the governed in a given state or country. This is the supreme law of any given state. Constitutional Law is that branch of law that governs and guides constitutional interpretation and implementation as well as sets down the relationship between different entities of a state namely the executive, the legislature and the judiciary.
It is essentially a body of law derived from a country’s written constitution that lays down and guides the duties and powers of the government, and the duties and rights of its citizens and residents. All States can be said to have some form of norm that governs the relationship between the arms of the government and a government and its people, however the problem comes in in implementation of the said norms i. e. constitutionalism. Constitutionalism is what gives life
to a state’s constitution. A constitution is a document and basically it cannot be said to be dead or alive and what determines the same is the implementation of the said document. Constitutionalism is well achieved when the constitution is implemented to the later that is when the spirit and the letter of the constitution are upheld. It will take the good will of the government of the day to implement the constitution in order to breathe life into it.
Therefore, a constitution as a document cannot be said to be dead but for the failed implementation or rather the deliberate encroachment by the ruling elites. Constitutionalism will require a conducive political environment and the entrenchment of the particular clauses in the constitution, for it to be achieved. Take for instance, the Bill of Rights as entrenched in the USA constitution. This entrenchment has made sure that the fundamental rights of the accused are not compromised. This has been done for example by the famous Fifth Amendment of the U.
S Constitution that provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
” This provision has guaranteed the rights of an accused person against double jeopardy, self-incrimination, due process in the administration of justice and just compensation. In view of the above, the courts have had to make landmark rulings just to make sure that these rights are upheld e. g. , in the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom.
384 U. S. 436 (1966) thereby mandating law enforcers to make any suspect they put into custody aware of all their rights, known as the “Miranda Rights” that include right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one. On the other hand, constitutionalism has been upheld in the African States especially in Kenya through Judicial Activism.
This has been evidenced by the land mark rulings by the High to challenge unconstitutional appointments by the executive such as the appointment of Mumo Matemu as the Chairperson of the Ethics and Anti-Corruption Commission – Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others  eKLR.. The Court held that it had jurisdiction to review the process of appointments of persons to State or Public Offices where mandatory procedures as well as the law were not followed.
The High Court further decided that the doctrine of separation of powers did not prevent it from entertaining the controversy surrounding the appointment of Mumo Matemu. The judiciary has tried to keep the constitution alive by such rulings. The other way in which constitutionalism has been up held especially in Kenya is by the legislations that by the 10th Parliament. The Parliament burned the midnight oils in a bit to beat the deadlines set up in the constitution such as the Public Finance Bill, Devolution among others.
As earlier stated, constitutionalism largely depends on the political goodwill and the integrity of the ruling elite without which, this piece of document becomes hogwash. We have instances in Kenya where the ruling elite have tried to suppress the constitution. This is especially because of the influence of the executive in the decision making by the other wings of the government especially the legislature. We have and still witness the manipulation of the legislature by the executive.
Members of Parliament and the senate interpret the constitution to suite their own interests and those of their affiliate political parties. We have heard of incidences where members of the legislature have attempted to mutilate the constitution for their own gain. The most evident scenario is the series of impeachment motions going on in the county assemblies, the parliament and the senate. The most recent one is how the government section of the Parliamentarians prevailed over Hon. Mithika Linduri to drop his impeachment motion against Hon. Anne Waiguru. The whole debate was reduced to the question of loyalty.
Therefore, without political good will, the constitution will remain a mere piece of document without life. Another incident where the constitutionalism has failed the test is on the Sovereignty of the people. The preamble and Article 1(1) of the 2010 constitution affirms that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”. There is a constitutional Paradox since it is the ruling elite that exercise the sovereignty while the people themselves are mere subjects being manipulated by these leaders.
In my opinion, can be eliminated, when the citizens effectively exercise their sovereignty e. g. recalling of ineffective leaders and voting in the right leaders without being influenced by bribes and other enticements. This can best be achieved if a thorough voter education is carried out, and the population economically empowered. This will go a long way in liberating the citizens in order to make independent decisions while exercising their sovereign powers through voting and elect leaders of integrity.
In my conclusion, I do agree to some extent that “Constitutional Law May be deemed elusive and immaterial when the constitutions in Consideration are either dead, hogwash and unrealistic” This is brought about by lack of constitutionalism by especially the governments of the world hence making the constitution to seem dead. But I will be quick to state that any constitution of a given state in itself cannot die but may remain abstract if life is not breathed into through proper interpretation and implementation through upholding of the letter and spirit of the constitution.
Constitutionalism can be achieved through, clear structures especially on the separation of powers whereby, no arm of the government seem to be more powerful than the other, proper interpretation by the judiciary and the willingness to implement it to the latter. REFERENCES 1. The 2010 Kenyan Constitution. 2. Judicial Activism in India: Meaning and Implications- a paper by Lipika Sharma 3. Fifth Amendment by The Legal Information Institute, Cornell University Law school. 4. Business Dictionary- Definition of a Constitution