Although the National Accord was a political deal between combatants designed largely to halt the bloodletting witnessed in the aftermath of a messy electoral process in 2007, the referendum on Kenya’s constitution in August 2010 effectively transformed the Accord into a compact between Kenyans and their rulers. By the overwhelming vote in favour of the new constitution, Kenyans asserted the importance of the Accord in the transition from an anomalous presidential system in 2010 to a pure presidential system based on clear checks and balances in some measure by 2012. By this act, Kenyans imported the “consultation between the president and the prime minister” in this transitional period into the solemnity of its constitutional text. The consultation between the two principals is then one of the condition precedents for the appointment of key constitutional office holders.
The current tussle regarding the legality of the president’s unilateral decision to nominate the chief justice, attorney general and two others without sufficiently consulting the prime minister calls for an understanding of the normative requirements that would ensure compliance with constitutional consultation embodied in Kenya’s new constitution.
The plain meaning of the verb “consult” means “to confer, discuss or decide an issue.” If unambiguous, words in law should be interpreted in their plain and natural meaning unless this meaning leads to absurd outcomes. According to Justice Blackstone, the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. Proponents of the unilateral presidential decision of appointment have argued that consultation is not consent or approval implying that the president was under no obligation to secure an agreement from the prime minister in relation to the four appointments. These proponents seek an interpretation of consultation as a process and not an outcome. Such an interpretation means that the prime minister has no choice but to agree with the president’s choice and all that is required to satisfy constitutional consultation is for the prime minister to be informed of the president’s proposals before such proposals are submitted to parliament or made public. This narrow interpretation of consultation negates the spirit of the national accord (which now has constitutional character) and whose purpose is to facilitate “real power sharing” between the principals until 2012.
Moreover, read in context, the present constitution emphasizes consultation between national and county governments as well as between various constitutional organs. For instance, Section 205 envisions consultation between the Commission on Revenue Allocation and both the national assembly and Senate in any financial matter concerning the county governments. Section 220(1) (c) mandates parliament to formulate legislation that will among others provide the framework for consultation between national and county governments in the budgetary process. Similarly, the transitional and consequential arrangements in schedule eight require that the Attorney-General consults with the Commission for the Implementation of the Constitution (CIOC) in the preparation of the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified. Were consultation an empty process, it would mean that parliament would most likely enact a law that renders meaningful negotiation between county and national government a mere formality lacking in substance. Similarly, the constitutional requirement that the AG and the CIOC consult before originating legislation to give effect to a specific aspect of the constitution would be thrown into a state of uncertainty.
Consultation was the answer to Kenya’s fractured and tribalized politics post 2007.
This is because, consultation seeks to build consensus in a manner that unites various constituencies instead of dividing them. It encourages diversity of opinion and acts to control the struggle for power that is otherwise so common in traditional decision-making systems. When followed, this principle encourages those ideas that spring forth from a sincere desire to serve, as opposed to ideas that emanate from a desire for personal aggrandizement or constituency-building. Consultation has overlapping requirements of reasonableness, fairness, open mind, freedom from demands, and the need to avail oneself of the consultation opportunity. In the realm of environmental and human rights law, consultation means that those consulted must be given a reasonable opportunity to state their views. While those consulted cannot be forced to state their views, they cannot complain, if having had both time and opportunity, they for any reason fail to avail themselves of the opportunity.
In the end, when two physicians ‘consult’ over the seriousness of a health condition, it is important that they reach some consensus on the remedy they will prescribe. Given that Kenya’s judiciary has for long been ailing from a complex range of maladies, it is important that the current political physicians understand that they have few choices and short time in re-legitimating this institution.
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