Wetang'ula's defiance of court decision and the Kenyan curse

It is beyond question that Kenya boasts one of the most rights-centric constitutions globally—a transformative legal charter that seeks to correct historical injustices while shaping a dignified future. It’s a document that is not merely ink on paper but an active force that wrestles power from the self-declared lords of the earth, reminding them that authority, unless justified by the Constitution, is no authority at all.

Three pillars define such a transformative Constitution. First, it must be a fortress of human rights, spanning social, political, and economic realms, and provide an avenue for legal redress for those aggrieved. Secondly, it requires a judiciary of valiant custodians, bound only to the Constitution, unyielding to pressure, and unswayed by convenience. Lastly, and perhaps most crucially, it demands an unwavering culture of the rule of law. It is this last pillar that remains Kenya’s Achilles’ heel. A foundational national value enshrined in Article 10, yet consistently trampled under the boots of political expediency.

The late Professor Okoth Ogendo, a titan in his own right of the legal academy, aptly described this dereliction as “Constitutions without constitutionalism.” He argued that without a culture of compliance, a Constitution becomes nothing more than a polite suggestion that is spoken of with reverence but ignored in practice. Kenya finds itself in this very predicament. Progressive laws are enacted, judgments are delivered, and declarations are made but those entrusted with upholding them treat court orders as friendly advice rather than binding commandments.

The latest disciple in this unholy tradition is none other than the Speaker of the National Assembly Moses Wetang’ula. His blatant defiance of a High Court decision which affirmed the Azimio coalition as majority in Parliament is a textbook of the erosion of the rule of law. But to fully grasp the gravity of his defiance, one must first examine the findings of the court on two key issues: His continued hold on the leadership of the Ford Kenya party and the majority-minority dispute in Parliament.

In a bid to justify his dual role as both Speaker and party leader, Mr Wetang’ula presented several arguments before a three-judge bench. First, that since he was elected to Parliament via a political party before being elected Speaker, Article 77(2) did not apply to him, as it only prohibits appointed state officers from holding political office. Secondly, that Section 12 of the Political Parties Act, which bars public officers from holding party positions, does not apply to him since it exempts MPs and the Speaker is an MP. Thirdly, that under Articles 97 and 122 of the Constitution, the Speaker has no vote, rendering his party leadership inconsequential.

The old adage goes that one cannot serve two masters. The role of a party leader is inherently political while the Speaker must embody fairness. How, then, can a Speaker be expected to impartially preside over debates while actively steering the political course of a party? Justice is not just about fairness, it is about the perception of fairness. “Justice must not only be done, it must also be seen to be done.” The court sought to reinforce this principle. Furthermore, from the judgment, one can glean a crucial distinction: The Speaker is an ex officio Member of Parliament (MP) not by virtue of being elected an MP, but because he is elected Speaker. The moment he assumes this position, he must relinquish all partisan ties.

If further proof was needed, it lies in the deliberate limitation by the Constitution of his political rights to vote in the National Assembly proceedings. On the question of parliamentary majority, the decision of the court was straightforward. Once the Independent Electoral and Boundaries Commission (IEBC) gazettes election results, they determine the official composition of Parliament and who the majority are. The Registrar of Political Parties had already confirmed Azimio as the majority immediately after the election through a letter. The attempt of the Speaker to introduce a post-election coalition agreement as a determinant of majority status was rejected in total by the court. A court order is not a political memo open to reinterpretation at will. It is final unless successfully appealed. Yet, despite this clarity, the Speaker persisted attempting to maneuvre around the judgment and deliver a ruling that contradicts it, ironically recycling the very arguments the court had dismissed.

This brazen defiance exemplifies the Kenyan curse: Impunity masked as power, defiance dressed as strategy, and law reduced to a mere inconvenience. The attitude of “Utado?”—a casual sneer at the law, is the curse that threatens our otherwise beautiful Constitution. Yet, history has a cruel sense of irony. The Constitution, though seemingly powerless today, is both forgiving and unforgiving. Those who trample on it today will one day find themselves seeking its refuge when power shifts as it always does. The excitement of political maneuvering is fleeting, but the Constitution remains a silent witness, patiently awaiting its moment of reckoning.

The Kenyan problem is not the law, it is the culture surrounding it. We have built institutions, but we have not nurtured the culture of obedience that sustains them. Deriving from the works of Lord Acton and his writings on power tendencies, one can conclude that a good law in the hands of bad men is but a sword turned against its own people. As citizens, we must insist on zero tolerance for tyranny. If we allow those in power to believe they are immune to accountability, we will have built a Constitution without constitutionalism; a beautiful house whose walls collapse at the first storm. The rule of law is not a favour from the powerful; it is our birthright. And until we demand its enforcement, we will remain trapped in this Kenyan curse—where law exists, but justice is optional.