Our parliamentarians fall among the most vociferous critics and protesters of various government policies and failures. At every opportunity, they publicly join other Kenyans in lamenting our bitter travails.
All media, and especially the new platforms, bear witness to this admirable solidarity and advocacy for the people. Until, of course, one notices that the legislators’ crusading ferocity wanes as they approach the capital, and is completely extinguished at the portals of parliamentary chambers.
In the august House, these champions of a besieged populace transform into the meekest lapdogs and mechanical rubberstamps of the Executive. The Executive comfortably advertises a visceral contempt for the ways of the legislators. Indeed, these weak points have been exploited to devastating effect in subduing the Houses of Parliament, despite their numbers and constitutional sovereignty.
During the vetting of applicants to the position of Chief Justice, a leading candidate was hard-pressed to give a decent account of how a bench was constituted and required to proceed ex parte by night. The candidate instead fingered then President of the Court of Appeal and now Attorney-General, who was on the vetting panel, as the person answerable for this outrageous anomaly.
Divisive electoral wins
Another applicant has been much criticised for having recently represented the President in defending two controversial and arguably divisive electoral wins. A few other applicants are generally expected to rush where angels fear to tread. Obviously, the famous “revisiting” of the Judiciary was so unremitting, and attacks on the Chief Justice so vicious that many credible candidates opted out of the process altogether. This has largely constrained our choices of Chief Justice.
These developments portray an institutional environment where executive power is unlikely to encounter meaningful countervailing processes. Also, it is instructive that during a ravaging pandemic, the key government response has been violent policing and severe repression through a resurgent provincial administration network.
Covid-19 containment measures are now a function of the national security apparatus under the public order framework. Without making a serious dent on the rampant pandemic, political dissent and democratic freedoms have been drastically curtailed. In several recent by-elections, despotic excesses of the type last witnessed in the nadir of one-party tyranny became commonplace. A democratic space that had been steadily atrophying suddenly collapsed.
A singular attribute of our constitution is that it is despot-proof by design. However, without changing a single letter of its text, our political environment has been rigged to undermine this quality, and our Bill of Rights is destitute of the institutional stewardship of a conscientious parliament or vigilant judiciary.
It is now so much easier to appropriate sovereign power with total impunity. The omens suggest, I’m afraid to state, that the seeds of this nightmare may be germinating and sprouting right before our eyes.
Only recently, Kenya pronounced itself to be aggrieved by perceived bias of the International Court of Justice towards its position in the Somalia vs Kenya maritime delimitation case. Citing a litany of grievances, the State declared the Court incapable of fairness and devoid of credibility. For this reason, Kenya repudiated the court’s jurisdiction and withdrew from the case. This catalysed a spectacular diplomatic tantrum, activating a chain of retaliations reminiscent of those feisty Kilkenny felines.
The problem is that Somalia is not just a neighbour with whom we share the longest border and the largest ethnic population. It is also a territory that poses existential peace and security implications for us, on account of lawless fanatical bandits committed to tormenting us.
In cooler-headed times, this constrained our policy, nudging it towards more reticent and delicate paths. It was therefore astonishing to witness this bluff, which was escalated by an irascible ultimatum the impending, non-negotiable closure of one of the world’s largest UNHCR refugee complexes. The repatriation of Somali refugees, it was stated, would stem al-Shabaab terrorist activity in Northern Kenya.
I doubt that we are particularly keen on an all-out regional conflagration. At the same time, it is too easy to infer from these jarring policy assaults clear potential for the sort of national security and public order situations which justify the invocation of Article 132(4)(d) of the Constitution. Under Article 58, the president may obtain a blank cheque by declaring a state of emergency drawn by the National Assembly and signed by the Supreme Court.
All the elements of a totalitarian, post-constitutional order are now in place. The assembly of this country’s worst nightmare is underway, right before our disbelieving eyes.
Like the fiddlers of the Titanic, our parliamentarians are happy to ply us with flimsy outrage, sterile protest, meaningless criticism and useless anger. Where it matters, they are, in their clamorous hundreds, no more than dependable stooges of the Executive.
And with a Parliament convulsed with cowardice and intoxicated with corruption, the Executive hastens its turn into a monstrous monopoly: unstoppable, insatiable and utterly lethal.