Constitutionalism is an idea that developed from ancient times. The earliest groups of people to develop laws include the Egyptians and the Babylonians. Great warriors like Genghis Khan developed laws for their communities.
The idea of constitutionalism is understood as a collection of laws that have to be followed by all relevant people. There has to be discipline if the Idea of constitutionalism is to work.
A wise Chinese King decreed laws for his kingdom. All within the kingdom were subjected to the law. But the king was the first to break the law. The consequence of breaking the Law was death. So the king sentenced himself to be executed.
The king was of the opinion that he was not a hypocrite. It was not right to write laws for other people that he himself he could not keep.
The subjects of the kingdom loved the king and convinced him he was of more value to the kingdom than the Law.
The idea of constitutionalism demands discipline. Everyone who is relevant must be subject to the constitution. It is not right to promote the idea of constitutionalism and then fail to achieve the discipline required to meet the standards expressed in the constitution.
The constitution is relevant to the extent to which the human beings who live under the constitution are respecting the it.
The 2010 constitution is the relevant constitution in Kenya. The relevance of the constitution depends on the discipline of the political class first and then the citizenry of the nation.
If the political class is disciplined and respects the constitution, then the citizenry will be subject to the constitution to the extent to which the political class respects the constitution. The political class becomes a reflection of the citizenry of the nation.
In Kenya, there are politicians who do not behave like they are under the constitution and instead behave like they are above the constitution. Their actions are a reflection of this fact. For example murder.
The consequence of some politicians being above the constitution is that some people are also above the constitution. For example, if the president is above the constitution, then the presidents wife is above the constitution. And then her children are above the constitution. Then the relatives are above the constitution. They are able to take loans from the bank and refuse to pay it back. And then the family friends are above the constitution. And in the long run the whole community is above the constitution. Then the whole idea of Constitutionalism fails.
Moses was in the desert. While in the desert, some of the people he was maneuvering with were too rebellious. Moses writes, “God made the ground open and one group fell in. And when the ground closed another group had been swallowed”.
God says the leader has to have power over the people he is leading.
According to the constitution of Kenya, only the president is above the constitution. The reason why the president is above the constitution is because the president is the commander in chief of the Kenya army. The president is not a normal citizen but a warrior. He can wage war even against his own citizens.
It is necessary for the sake of stability of the nation for the president to have this kind of power. For example, if one of the citizens, a politician, a community, or a group of citizens is rebelling against the president, for the sake of stability of the nation, the president is allowed to murder the rebellious citizen. This is why there are political assassinations.
The presidents who truly understand the power of the office of the president and the power of being above the law, understands that it has a license to kill and a license not to Kill.
Kenya has had four presidents. Three of these presidents have executed their duties. The fourth president, Mr Uhuru Kenyatta, is currently executing his duty as the president of Kenya.
Some assassinations are necessary especially if the population is rebellious. Either this or the nation would be unstable. And sometimes if the president did not behave this way, there would be even more deaths. This is why it is necessary for the president to be above the constitution.
In Kenya today, there are three politicians who are above the Constitution. And for this reason the idea of constitutionalism is diluted.
Mr Uhuru Kenyatta, the constitutional president of Keny,a is one of the politicians who is above the constitution. His being above the constitution is justified because he is the president. And the Kenyan population has a tendency to be rebellious. This is reflected in the politics that is practiced in Kenya and the history of politics in Kenya.
Mr Raila Odinga is another politician who is perceived to be above the constitution. This perception is because of the agenda that Mr Odinga pushes. The agenda that Kenyans are oppressed by the ruling class and he is the right person to correct this situation. Especially if he achieves the position of president.
The 2007 election was a chaotic election. The 2007 election was a war and people died. Property was destroyed and an impasse or stalemate was achieved.
The International courts at the Hague were concerned. The main parties in the 2007 election were the Orange Democratic Party and Party Of National Unity. The leaders of the Orange Democratic Party were Mr Raila Odinga and Mr William Ruto. And the leaders of the Party Of National Unity were Mr Mwai Kibaki and Mr Uhuru Kenyatta.
The International Courts Summoned Mr William Ruto of ODM and MR Uhuru Kenyatta of PNU. The international courts were of the opinion that Mr Kibaki, who was the president, and Mr Odinga were too important to be summoned to the Hague.
This decision gave the impression that Mr Kibaki, and Mr Odinga, were above the constitution. Mr Kibaki, because he was the president, and Mr Raila Amolo Odinga, because of his popularity. Many people believed that the latter was the winner of the election.
Many of his supporters believe that they are oppressed by the ruling class. Especially the corruption of the ruling class which creates inequality in communities.
Mr Kibaki retired and became an ordinary citizen. Mr Odinga is still engaged in active politics. Even though he has no constitutional position he is definitely not an ordinary citizen.
The 2017 election is evidence that Mr Raila Amolo Odinga is above the constitution. Mr Raila Amolo Odinga should have been arrested before the 2017 election for the unspeakable things that he has done. Including changing the constitution in 2010, the 2005 referendum, calling himself baba, creating mistrust among communities and most of all breach of political trust when he betrayed an agreement that he had with President Moi.
The Consequence of arresting Mr Odinga is national instability especially in his strongholds.
Another politician who is above the constitution is Mr William Samoei Ruto. Mr Ruto is a very reactionary politician with few new ideas on how the nation should be run. His being above the constitution can be Justified if it is a reaction to the interests of Mr Raila Odinga.
Mr Ruto has been involved in more than ten multi billion shilling scandals including the most recent the Dam Scandal. Others include The Maize Scandal the National Youth Service Scandal and others. But Mr Ruto has never been arrested. The consequence of arresting Mr Ruto is national instability especially in the Rift valley.
Mr Raila Amolo Odinga and Mr William Ruto deserve to be arrested. Even they themselves and their supporters know that they deserve to be arrested. They are the reason why the idea of constitutionalism is weak in Kenya. Once they are above the constitution, then all the people who support them are above the constitution. The police cannot even arrest their supporters.
Mr Raila Amolo Odinga and Mr William Ruto do not have the discipline to uphold the constitution and the idea of constitutionalism. And because they do not have this discipline, the rest of the nation cannot uphold the idea of constitutionalism. For this reason, the idea of constitutionalism in Kenya should be considered a failure, and a new system of governance should be considered. Including living without a constitution like the united Kingdom. If it is to be insisted that the idea of constitutionalism is the best way forward, then everyone including the president has to live under the constitution.