Chapter Six of Constitution is Kenya’s soul

On July 15, former Nairobi Governor Mike Mbuvi Sonko – the political maestro of Kenya’s seedy politics – took his last political breath.

The man with the proverbial nine lives finally met his match in Chief Justice Martha Koome’s Supreme Court.

In a swift and laser-sharp legal opinion, Kenya’s Supreme Court redeemed itself, even as it laid waste to Mr Sonko’s political career.

The man from Nowhere – and Everywhere – was decapitated.

Barred from ever holding any public office in the Republic of Kenya.

The court went beyond simple lustration, the legal prohibition of a wrongdoer from holding office for a limited period.

The bar on Mr Sonko is total and indefinite – until he meets his maker.

The Supreme Court severed Mr Sonko’s political head from his anatomical torso.

I could hear men, women, and even children celebrating the court in every village and hamlet in the farthest reaches of the republic.

The country had been on moral life support, virtually dead, until the court breathed new life into its dying fibre.

The soul of Kenya was given a new lease on life. Countries and states, just like humans, are living organisms.

You can kill them. The way “Emperor” Jean-Bedel Bokassa killed the Central African Republic, or General Augusto Pinochet killed Chile.

Or General Secretary Nicolae Ceaușescu’s “murder” of Romania. The soul of a nation is what animates it, and gives it intelligent, moral life.

Bill of Rights

In constitutional law, we can think of the Bill of Rights as the soul of a nation.

It’s the paramount section of the Constitution that trumps all others.

In it, is the genus of the central character of the state, and presumably its people.

It is the genius of political democracy. Remove the Bill of Rights and the state turns despotic in a nanosecond.

It becomes a leviathan, an ogre bent on the consumption of humans.

In Kenya, the Bill of Rights is meant to serve the same purpose, except a cannibalistic state – all three arms of the Legislature, Judiciary, and Executive – is populated with green-eyed monsters.

They live, breathe, and practise impunity. We have a criminal elite.

The drafters of Kenya’s 2010 Constitution went beyond the confines of the Bill of Rights, whose main purpose is to protect the individual from the caprice of the state.

Every coin has two sides. I am yet to see a one-sided coin.

So, it was apt for the drafters to provide a corollary, the yin, if you will, to the yang, of the Bill of Rights.

Moral code

That would be Chapter Six of the Constitution on Leadership and Integrity.

It’s the stanza that focuses on the dos and don’ts of state public officials.

But it’s more than law, or a prescriptive normative edifice. Rather, Chapter Six is about the values that must guide public officials. It’s a moral code. 

There’s a reason we don’t marry our siblings. It’s not just that the law prohibits it. It’s fundamentally gross.

Unthinkable. Undoable. Outside the bounds of civilisation. Chapter Six is akin to the moral prohibition of incest.

In my view, Chapter Six is a higher law than the Bill of Rights.

It’s intrinsically and morally foundationally normative, not just a simple garden variety legal predicate.

Chapter Six is about the soul of Kenya.

In banishing Mr Sonko to the hills where he shall hence forever live like a political hermit and pariah, the Supreme Court told all of us that we must return to first principles as a nation.

That we must recover our core humanity. Or perish as a nation.

In this election, we’ve seen the worst. The vacuity of the political elite – and many of our common citizens – has shown how decrepit we have become.

We are in love with thieves, cheats, and looters. Get this – we adore those who plunder us.

Call it the Stockholm syndrome. Whatever. It makes me puke.

The proof of this pudding is in how the courts, law enforcement, and leading citizens have treated Chapter Six – as a mere suggestion written on toilet paper.

A guy running for governor can’t prove he’s a college graduate but insists he has a degree.

Another one didn’t even complete high school and is cleared to run. We have a sewer of an elite.

Finally, our much-maligned Supreme Court took one step out of the sewer.

It started with the Building Bridges Initiative judgment, a good first step.

There, it gave us proper directions on how to amend the Constitution.

The decision was universally praised, even by those who lost.

Similarly, the Sonko opinion settles for posterity the centrality of Chapter Six in our lives.

Chapter Six is our national anchor. It bequeaths us here and now – and posterity – a clear moral path forward.

Where Mr Sonko may have breathed his last, the Supreme Court has breathed new life into the Constitution.

CJ Koome, keep on driving that nail deeper into the coffin of political debauchery.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.