JKIA Adani deal is an affront to the Constitution, here's how

There is a point that is constantly lost – and conveniently so – by Kenya’s political and administrative leadership. It relates to Article 1 of the Constitution and concerns the provision that all public power must be exercised in accordance with the law.

What is often lost is that there is no residual power outside the Constitution that public officers can lean on to anchor or justify any aspects of their exercise of public authority or power. Let me explain why this is important.

Public power and culture of justification

What Article 1 provides is that authority and legitimacy of any public officer to undertake any actor action draws directly from the constitution. In this regard – and every time – a public officer contemplates or undertakes any activity the starting point should always be the question: does the constitution allow this activity and if so, how does the constitution expect the activity to be undertaken?

If a public officer fails to contemplate and adequately consider this question – he or she will almost always be undermining - or acting outside - the authority of the Constitution. I have previously explained the constitutional basis of acting in this manner.

Simply, the most consequential rule the 2010 Constitution introduced about exercise of public power is the culture of justification.

The concept of culture of justification is a simple and straightforward one and expects (mandatory) that given all exercise of public power or authority derives directly from the people through the constitution, those exercising delegated power must always provide justification to the people on whether the constitution and the law allow them to undertake the action they contemplate or propose and if so whether in the manner that they have planned to act.

Why justification?

There are at least three reasons the Constitution insists on justification. First, it is emphatic about the rule of law. The rule of law – in the context of the exercise of public power –means that the authority or action of a public officer must derive from the Constitution and the law – and nowhere else.

The Constitution does not contemplate that a public officer can justify the basis of a decision or action on common sense, logic or discretion. The constitutional reasoning for this is simple: unregulated discretion, common sense, or logic breeds arbitrariness and, ultimately, abuse of public authority or power.

It can never be what makes sense to the public officer because common sense tends to be tethered by subjective parochial knowledge and interests. It must be objectively acceptable – what the constitution, first, and the law, second, says is authorized and justifiable.

Secondly, the Constitution frowns on opaqueness. In fact, it instructively refers to the purpose of Kenya’s governance system as one that promotes an “open and democratic society.” This elaborates on why the constitution insists on the obligation of the government to proactively provide the people with information, facilitate public participation, and jealously guard the freedom of speech and expression.

Third – and directly relevant to the Adani-JKIA deal - the Constitution expects development to be guided by at least four critical principles. One, development must be sustainable. Two, it must be equitable – meaning that the government must ensure that development prioritises the needs of all Kenya without giving undue advantage to any specific group, regardless of geography, political affiliation, economic standing, or other mutable idiosyncrasies.

Three –closely associated with one and two – is that development must consider inter-generational equity. This notion prevents the government from undertaking hefty economic activities whose financial burden will primarily and unfairly be borne by future generations. Fourth and finally, development must be conducted in a financially prudent manner.

Adani and JKIA

Even with the scanty (and controlled) information now available on the Adani-JKIA deal, it is hard to see how the Adani process and deal meet the most elementary but critical requirements of the Constitution. The failure, of course, starts with the opaqueness surrounding the deal.

And opaqueness becomes the harbinger of all other constitutional failings of the deal. Without information – or with the information availed being overly managed and likely not credible, the public is not able to audit whether the deal meets the most basic constitutional requirements: is the deal and the process based on the law and even then, is it being undertaken per the law? Does it comply with the basic principle of sustainable development, equity and prudent financial planning – for example, why should upgrading of the airport (assuming that is even what Adani and Ruto’s government want to do) be prioritized over many other critical public infrastructure projects? Please note, I am not saying that it should not be prioritized because that is not the logic of culture of justification: the logic of justification is to innocently ask: why this project; why this way; why by this entity; why and why?

Additionally, is concessioning a critical national infrastructure to foreign company for 30 years, prudent planning generally and prudent financial planning specifically – or is it merely corrupt and lazy planning? Does it accord with constitutional principle of inter-generational equity?

These and many other foundational questions – with an unhinged supply of all relevant information – is where the constitution expects the conversation on upgrading JKIA should have started. And for a regime that prides itself of a bottom-up approach, one would have expected it would know what is the minimum baseline (the bottom) that the constitution expects when undertaking planning and executing public projects and especially a critical infrastructural project like JKIA.

@waikwawanyoike is a constitutional lawyer