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CONSTITUTIONAL CRISIS IN
KENYA
By Prof. Alberto Bencivenga
26. Feb. 2008
Whoever reads Mr. S. N. Waruhiu’s book “From Autocracy to
Democracy in Kenya” will be impressed by the amount of information
and by the clarity of the analysis done by this author. Any reader
who did not grow up in an Anglo-Saxon juridical culture will be
additionally impressed by the fact that, in spite of the burden
put on him by the bias of his Anglo-Saxon juridical education, the
author was perfectly able to identify many of the sources of the
present Kenyan problems, even if often without becoming aware of
it.
The whole Anglo-Saxon constitutional history is characterised by
the Executive trying to somehow keep the Judiciary under its
control and people grown up within this system, usually fail in
getting furious in front of some facts, which mightily irritate
anyone who instead grew up within a Roman juridical culture.
The Attorney General, who is part of the Executive and a Cabinet
member and who can enter a nolle prosequi, is a typical
antidemocratic Anglo-Saxon invention, for the purpose of
protecting from prosecution members of the ruling clique! The job
of an attorney general is totally unknown and unheard of in
countries following the Roman system of laws, because both the
concepts of such an attorney general and of the possibility of
entering a nolle prosequi ruling are unknown to the Roman code,
even if nolle prosequi (don’t prosecute) is said in Latin.
Actually, one of the fundamental concepts of the Roman law is that
there cannot be any discretionary power in prosecuting and the
prosecution is a straight-forward, automatic and compulsory
exercise that has to be started any time there is a notitia
criminis (= news of a crime), even if this crime appears to be
only possible and not at all sure. The Anglo-Saxon juridical
culture justifies these two obnoxious ideas - attorney general and
nolle prosequi – because they consider the needs of the Executive
to be prevalent in respect of the needs of Justice and they want
to have the possibility of stopping a case that may embarrass the
executive, while the Roman law considers the interest of
theoretical Justice to be paramount and having priority in respect
of the interests of the Executive.
In a Roman system of law, for example, since the Goldenberg
inquest hinted very clearly to the possibility of criminal acts
having been committed, the competent prosecutor would have
proffered his accusations long ago and a formal trial would have
been started long ago. The Office of the Prosecutor, in
continental Europe, where the Roman Code is prevalent, is not
under the control of the Executive, but it is totally independent,
as a branch of the Judiciary. In the Cabinet, there is a Minister
of Justice, who is competent to supply the Judiciary with all the
paraphernalia needed for it to function (buildings, machines,
archives, secretaries, cleaners, etc.), but has nothing to say
about how justice is administered and how the Judiciary recruits
its court staff.
Let me give two examples of what this system causes:
1. About 20 years ago, as everybody remembers, the Press, all over
the world, started reporting on what was at that time called the
Lokheed Scandal. Newspapers gave the impression that the Lokheed
paid bribes to several Ministers of Defence of NATO countries to
convince them to purchase Lokheed combat aircrafts (which, by the
way, were quite good crafts). The Chief Prosecutor of Rome read
that piece of news on the newspapers and, since this was a notitia
criminis (information about a crime) and since the Constitution
commands that a notitia criminis must be automatically followed by
a prosecution, he had no option other than prosecuting his
Minister of Defence. The investigators of the Judiciary Police
found and supplied him with the necessary evidence; he could prove
his points in Court; won the case and the Minister of Defence went
to prison for 4 and one half years, even if he was a powerful
member of the ruling coalition.
2. Leone was one of the Presidents of the Republic of Italy. He
was a famous criminal lawyer and he was paid a fee for a case he
argued before becoming President of the Republic, 2 year after
being in office. He forgot, probably in a genuine way, to declare
this sum into his tax return and a journalist published the
information on a newspaper (tax returns in Italy are available for
inspection to every citizen). The competent Prosecutor of Rome
Judiciary set-up read the relevant article in a newspaper and he
had no other option than prosecuting the President of the Republic,
who was found guilty, was heavily fined (a criminal offence
politically charged, if committed by a politician, must be
punished more severely than if committed by a private citizen),
had to resign from the Presidency and disappeared from the
political life.
How can one guarantee such a freedom for the Judiciary? Simple:
the salary of judges is by law tied up with the salaries of the
members of Parliament, who, in every climate do not like to starve;
judges have tenure; the Executive has no power whatsoever on them,
because judges are not appointed by the Executive or by the Head
of state, but through a difficult competitive examination. (The
idea of an executive president of republic appointing judges as in
USA or in Kenya would give the creeps to any continental European!
And with good reasons! Look at what happened in the USA, where the
noble founding Fathers who wrote the American Constitution, have
been also victims of their British juridical culture of the time
and were unable to avoid being poisoned by it, with the result
that they could not foresee devices capable of avoiding what
happened recently: Bush father appointed the High Court judges and
the High Court judges rigged Bush son to the Presidency. How many
devices are regrettably missing in the American Constitution to
prevent George Bush from successfully busying himself in
constructing the Fascist state he seems to try to establish in
America? None, which is simply horrifying!).
In a nutshell, if there is the need of appointing 15 new judges,
the Minister of Justice (a cabinet member, I repeat it,
responsible to supply the Judiciary with all the means necessary
to do their work, without any power whatsoever in the running of
court affairs) advertises the jobs. Eventually 50 persons apply.
After being vetted by the Judiciary Police (nobody can be a judge
if in his enlarged family there is somebody convicted for a
criminal act), 45 candidates remain. They are summoned one day in
Rome at the Palazzo degli Esami (State Examination Building) and
given several points of law, on each one of them they have to
write an essay. A panel of examiners made by senior judges and
professors of law in the Universities reads, discusses and marks
these essays and only after marking them, the sealed envelopes
containing the names of the candidates are opened. The 15
candidates scoring higher are employed!
A newly employed judge, after a thorough training program, serves
4 years as junior judge in a lower court to gain practical
experience in the bench and, after this period, he may be sent to
gain a similar experience in a prosecution office. During his
career, he can serve 4 year long tours of duty either as a judge
or as a prosecutor as the need may arise and as he is inclined to
and his promotions will happen also through his performance and
through competitive examinations. (In Kenya, this system would
have the added advantage of putting to work very competent
prosecutors, instead of half literate policemen).
Who rules the Judiciary? Every member of the Judiciary votes for
the election of the Superior Council of the Judiciary, whose
honorary (not executive!) Chairman is the President of the
Republic. The Parliament chooses a small number of members, that
however will not be able to strongly influence a majority and who,
anyway, must be respected and well known men of law and, if they
were parliamentarians, they have to resign form their chamber.
This Council administers discipline and supervises the career of
every judge or prosecutor, so that, if you are a judge that
convicted a member of the political party of the Minister of
Justice, all this minister can do against you, is to write a
letter of complaint to the Superior Council of the Judiciary
alleging that you dress improperly or you are late for work and
the Superior Council will decide on merit if to follow up the
matter or dismiss it.
The Judiciary is so independent and so powerful in continental
Europe, that in Italy it destroyed an omnipotent political system
who had become utterly arrogant and corrupt, by simply prosecuting
abuses not permitted by the law (one of the most powerful
politicians and Prime Ministers of Italy, Craxi, run away and died
in Tunisia because he was sentenced to 12 and one half years in
prison for corrupted practices in favour of his party, when Prime
Minister).
Germany and Italy, at the end of the 2nd World War, re-established
a democratic government after being under dictatorships for many
years. Obviously, the new states inherited a lot of laws passed
during the dictatorship years which were not tolerable under the
re-established democracy. So, one of the first steps in both
countries was to establish, as mandated by the Constitution, a
Constitutional Court of highly competent judges. Anybody on trial
because of a law made by the Nazis or by the Fascists, that
appears to be unconstitutional, has the right to ask for a
temporary suspension of his trial, pending a request for an
opinion of the Constitutional Court and, when the Constitutional
Court declares the law under which the citizen is prosecuted to be
unconstitutional, the accused is immediately acquitted and the
relevant law becomes ope legis null and void and is cancelled from
the Code. In a short time, all the pre-existing anti-democratic
laws were killed.
This is the same situation in which colonies found themselves at
the moment of acquiring their independence. Of course, a colonial
ruler did not want problems and made therefore laws stating, for
example, that a party must be registered, that a political rally
must be licensed and that newspapers or magazines must receive
permission from the executive before starting publication and all
sorts of activities, trades and professions need to renew an
annual licence. Now, these rules infringe congenital rights, which
belong to a citizen as birth rights and are not granted from above:
the freedom of association, the freedom of speech, the right to
have a free press, the right to freely practise one’s profession
or trade and, if we had in Kenya such a Constitutional Court,
these liberticidal laws would have disappeared since long time. (About
the press, there is in European countries run under the Roman law
a Registry of magazines and newspapers, usually kept by the
Judiciary. If one wants to publish a newspaper, one has to inform
this Registry about the date when one starts publishing, the name
of the responsible editor and the name of the paper. The Registrar
of the Press, before entering the information into the public
Registry of the Press, can only object to the chosen name and
write to the perspective publisher “Sorry, Sir! You cannot publish
in Nairobi a newspaper called ‘The Standard’ because this name is
already used by an existing newspaper. Please choose a different
name”). Of course a party does not need any permission or any
licence to start functioning nor a professional needs to renew a
licence every year, once he has passed all his state exams to
practice his/her profession!
The Constitutional Court is also competent to ruling on
controversial issues that might arise between ministries and
between the central and the regional governments and on the
constitutionality of new laws approved by the Parliament. Its
powers are limited only by the Constitution! For example,
Berlusconi, when he was Prime Minister of Italy, , using his
majority in both chambers of the Parliament, had a law passed,
according to which a Prime Minister cannot be prosecuted while in
office. This law survived just one week and was duly and timely
killed by a sentence of the Constitutional Court that found it
contrary to the Constitution, which states that everybody, without
exception, is equal in front of the law.
Another basic rule is that nobody can be removed from his natural
judge, a concept totally alien to the Anglo-Saxon juridical
culture! What is my natural judge? If I commit a felony for which
the Nairobi Court has the territorial competence to try me, I have
to be tried by the judge of this Court that was on duty in the
very moment in which my case became a case and nobody can appoint
special courts or commissions of judiciary inquires! Either you
prosecute me or you shut up!
It is fashionable and probably justified now to attack the Kenyan
establishment because of corruption, but when this criticism comes
from the British High Commissioner it cannot be tolerated at all,
because this institutional corruption is a direct and obligatory
consequence of the idiotic principles laid down by the Lancaster
House constitution imposed on Kenya at independence! If you give
to a country becoming independent after being a colony and
therefore without any previous experience in self government a
constitution that puts the head of state above the law, that does
not consider the prosecution as compulsory and that establishes an
attorney general with the power to stop any prosecution, one
secures to politicians an unlimited impunity and creates the most
effective school of corruption that can be imagined!
Another issue that is usually overseen by scholars educated within
the Anglo-Saxon juridical culture is the electoral system.
Everybody believes that the United Kingdom is an old democracy,
but this is absolutely wrong! England started resembling a real
democracy only 30 years ago, when the Labour party changed the
electoral system, because till that date, if it is true what I am
told, there were electoral constituencies in northern Scotland,
where aristocrats and bourgeoisie were at home, that used to send
an MP to the Commons with just 12 votes, while in Birmingham,
where the working classes are living, 300,000 votes were needed to
send one MP to the House of Commons! In this frame of mind,
everybody accepts as democratic the system of election they have
in UK and we have in Kenya, without remarking how much it leaves
to be desired. It has been several time published by the press
that, after an election in UK, the opposition polled actually more
individual votes than the majority, but received less MPs because
of the faults inherent in the used system and by means of a clever
carving of the constituencies, because surely a clever executive
can carve constituencies to the exclusive benefit of a party or a
group of parties. The only 100% democratic way of electing MPs is
the so called pure proportional system, in which the elector votes
in the same ballot paper first for a party, by making a cross on
the symbol of the chosen party (in Italy it is called voto di
lista or party vote) and, after it, if he/she wants, a limited
number of names chosen among the list of candidates proposed by
that party can be indicated either by writing the names of by
writing the individual number under which the preferred candidate
is listed in the official party list of candidates (in Italy it is
called voto preferenziale or preferential vote). If party A is
voted by 30% of the electors, it has the right to have 30% of the
parliamentary seats and the candidates who received the highest
amount of preferential votes are returned to Parliament (if one of
them dies or resigns, the first of the non elected in the same
party’s list automatically fills up the vacant place).
Also, the system of having to register in order to vote opens a
big door to abuses, as Black Americans have learned the hard way
in the past, when the Ku Klux Klan prevented them from registering.
In continental Europe, everybody has to be registered in the
citizens’ roll of the municipality where he/she lives. Each
municipality sends the poll certificate to his/her house and
records his/her name in the list of the voters in the polling
station closer to his/her house. Anyway, if the poll certificate
cannot be delivered or if it went lost, one can receive a
duplicate straight away at the electoral office of his/her
municipality in a few minutes.
Mr. Waruhiu spoke in his book of instability in France and Italy
because of this system, but he uses a misnomer. It is not
instability. It is democracy! Italy, after the war, has been one
of most stable and economically most successful countries in the
West, even it they changed 55 cabinets, because the cabinet was
always formed by the majority Christian Democratic Party and its
allies. You see, I can be the best option for the Prime Minister
job today, but in a few months I can go politically nuts and begin
doing nonsense. Well, either my coalition partners demand my
resignation or I am given a vote of non confidence by the
sovereign Parliament and I am replaced. Meanwhile the business of
the different ministries goes on untroubled because the local
equivalent of the Kenyan Permanent Secretaries continue working.
These Permanent Secretaries (called in Italy Direttori generali or
Directors General) have tenure. They are people who started their
career from scratch and that have reached their position by
successive promotions, all of them through difficult and demanding
competitive examinations, on the outcome of which politicians have
no say whatsoever. These people know their job much better than
their politically appointed Ministers.
After a vote of non confidence to the actual Prime Minister, the
President of the Republic begins his most important political job,
called consultazioni or consultations. He speaks with the speakers
of both chambers, with previous prime ministers, with the leader
of each party, with the leadership of trade unions and of
employers’ organisations and with whomever he thinks useful. After
this round of consultations he chooses the person who has the best
chances to form a cabinet, informs him about what transpired from
the consultations and, once the two chambers of the parliament
have given a vote of confidence to the new government, the
President of the Republic swears in the new cabinet. Meanwhile the
civil service works as usually, probably better and faster than
ever, because they have not to convince a possibly incompetent
politician appointed as their minister, on what it is better to
do.
A further criticism to the Constitution given to Kenya by the
colonial ruler is the way the President of the republic is elected.
Let us not look at Kenya, because being our country we are
emotionally charged in judging it and let us examine the United
States of America. Does anybody of sound mind really think that
they had during their last election no better persons to choose
for the job other than Bush and Kerry? With that system, the
people are compelled to choose between the two persons that can
collect more money and that can better manipulate their own party!
Sorry, the chances that they may also be the best possible options
for the country are very very slim! The President of the Republic
must be elected by an assembly formed by all the members of the
Parliament with representative of the regional governments (we
might use in Kenya an electoral body formed by the members of the
parliament and all the mayors elected in the Country) with a
consistent compulsory majority, at least 75%, in order to compel
majority and minorities to agree on somebody who is worth.
Look at Germany and Italy, where the head of state is elected by
this system is in use: they have almost always had extremely good
Heads of state. Ciampi, the former President of the Italian
Republic, respected and loved by everybody there, is a famous
economist, the man that, as the Minister of Finance, actually
brought Italy into the Euro monetary system with flying colours.
Germany had appointed as head of state a man of high culture and
with top experience in international financial matters and now has
an iron-lady-chancellor. In the system used in USA and in Kenya,
none of them would have had any chance whatsoever to be considered
for the top job that they are doing in a wonderful way today. Why
must we prevent us from choosing among a wide pool of competent
peoples, just to follow blindly the stupid, ineffectual and
dangerous system used by the U. S. A.?
In order to make allowance for the different tribes, we might
apply in Kenya the principle that every time that the President of
the Republic must be elected, one of the tribes, on rotation,
proposes a number of candidates among which one of them must be
elected by the electoral assembly ad with the prescribed majority.
This President should be in office for just two years in order to
permit a quick involvement of every tribe.
I am strongly convinced that the application of these principles
also in Kenya, would never permit the hatching of any potential
dictator; it would assure effective check and balances, would
guarantee to the Kenyan a brand of superior democracy and it would
make Kenya the Switzerland of Africa in no time! Wherever this
system is adopted, not even a single party returned in total
control of the Parliament could enslave the country! So, it is
high time that somebody in Parliament proposes these changes.
Finally I like to add to this essay that the methods of appointing
judges of the Constitutional Courts are different in Europe, but
all of them make sure that the Parliament, the Executive and the
legal experts (Judiciary and Bar) are involved. A good method for
Kenya would probably be that one fourth of the Constitutional
Judges are indicated by the Parliament, one fourth by the
Executive, one fourth by the Judiciary and one fourth by the Law
Society. After this first step, vacancies are filled up by
invitation of the Court itself.
PROF. ALBERTO BENCIVENGA, MD, DCh, PhD
FCS (ECSA)
Specialista in Chirurgia (M. Chir)(Florence)
Specialista in Chirurgia addominale (M. Abdominal Surg.)(Florence)
Specialista in Urologia (M. Urol.)(Florence)
Facharzt für Chirurgie (M. Chir.)(Tuebingen)
Professor Emeritus of General Surgery, Somali National University
Professor Emeritus of Orthopaedic Surgery, University of Nairobi
CONSULTANT GENERAL AND TRAUMA SURGEON
00502 NAIROBI
Though not born in Kenya, the author did choose to be a Kenyan,
did it for the love to the Country and proved it with 30 years of
dedicated work. When he arrived in Kenya in 1975, he found a
middle age like orthopaedic surgery and immediately began to lift
this sector of Kenya up and out of the dark ages to the extent
that in Kenya, the most modern techniques of internal fixation of
fractures developed in Switzerland by the AO (Arbeitsgemeinschaft
fuer Osteosynthesefragen), became routine at least two decades
before it happened in USA and in England.
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