Stephen Mutoro of the Consumer Federation of Kenya (COFEK) and Ndung'u Wainaina of the International Centre for Policy and Conflict (ICPC) have gone to the High Court arguing that the Constitution is under threat. Mr Mutoro argues that as a result of the failure of government regarding the escalating cost of energy, and by extension, the cost of living, the economic and social rights of Kenyans guaranteed under Article 43 have been violated. He is seeking orders to compel the government to take steps to control the 'skyrocketing' price of basic commodities and lower the cost of living. Mr Wainaina, a committed activist, is seeking to prevent the Minister for Finance from reading the Budget on June 8th until he has complied fully with the provisions of Chapter 12 of the Constitution on Public Finance and specifically, Art 221.
Both Mr Mutoro and Mr Wainaina have ignited the imagination of Kenyans with their antics. They are not alone. The Constitution opened the floodgates that had been kept shut by the autocratic tendencies of all three previous regimes. Kenyans today are free to demand the protection of their constitutional rights without the fear that State agents will arrest them in their sleep and detain them without trial, or worse. In this context, it is fit and proper that if there is a dispute regarding the government's dedication to the protection of the rights enshrined under Art 43 or the willful violation of the provisions of Art 221, the proper forum for resolving these disputes is a Court of Law. We may scoff at their arguments, but we should appreciate that the usual manner in which we resolve disputes involving machetes and clubs are no longer necessary under the new constitutional dispensation.
Many may decry the messy manner in which the implementation of the Constitution is proceeding, but there is nothing wrong in ensuring that at these early stages in the 2nd Republic, all manner of styles and principles are tried and tested so that we are able to tell which ones work and which do not. It is in this context that the debate surrounding the suitability of Dr Mutunga and Ms Barasa as nominees for the positions of CJ and DCJ should be welcomed. Just because polls show that 80% favour their appointments is not proof positive that all Kenyans are unanimous about this. It may be that the polls failed to take account of the vast majority of off-the-grid Kenyans and thus the 80% may not be a figure that is unassailable. But, it is only through a vigorous public debate and where possible court-room litigation that we may finally acknowledge that Kenyans from all stations in life were given an opportunity to participate in public affairs.