letter and spirit

How are we to go about with the process of implementing the provision in the constitution that compels elective bodies to have at least one third representation of either gender? Last week, it was said that cabinet had discussed the issue and termed it “impossible” to implement then “impractical” and now, it would seem, time consuming and difficult to devise a plan that would effect this important provision. On the backdrop of this is that we had some women rights activists talking about the setting up of some areas as exclusively elect-women-only areas, an idea which came up short in espousing the democratic beliefs Kenyans have. For now, this is the biggest amo that people who are against this provision are using to lambast, among other things, the participation of women at every turn.

We normally invoke this saying “letter and the spirit of the law” or “letter and the spirit of the constitution” to proclaim our sense of constitutionalism, a belief of both the intent of its writers (the spirit) and that what is tangibly in writing in the constitution (the letter) tries to convey, to the farthest extreme possible, the intent of the writers. Indeed, we have been reminded time and time again by the Constitutional Implementation Commission, the Parliamentary Committee on the Implementation of the Constitution and by the retiring Attorney General that we need the spirit of the constitution to be alive and thriving, within ourselves in the form of a strong sense of constitutionalism, so that the constitution does not become a mere document, a piece of paper, the letter in itself.

But as one comes to learn, the letter is the antithesis to the spirit of the law (the thesis) when subjected to everything I have just said in the second paragraph of this post. If one must fix oneself squarely on either end of the binary (letter versus spirit/thesis versus antithesis), then he must be against what is on the other end.

Much of this can be said about the one third provision demanded by the constitution. But we could stop here and expand the concepts of “letter and spirit of the constitution” in thinking about what was happening a year ago during the referendum. What had Kenyans had in mind when voting to pass the constitution? Given, a lot of people hadn’t read all of the constitution and even those who read it read it against the belief that it was something that would try to settle past injustices, reconceptualise the future into that which justice, democracy and humanity (ahem, human rights) would be its core precepts. Even for those who didn’t read it, the constitution offered hope, a new start and was something that we could use when the political class in Kenya failed us completely. We were breaking a cyclic retinue of choosing leaders, being failed by leaders and choosing these same leaders over again. Most people looked to the spirit of the constitution during the referendum and this was because of some factors like a) badly carried out civic education and b) corrupt rhetoric of the political and clerical class. In retrospect, then, most Kenyans have a sense more of what the spirit of the constitution demands; they live by it and would ultimately base their judgement upon it.

We can say, under certain circumstances such as during the referendum, that constitutionalism fixed itself squarely as the spirit of the constitution, its intention, the tenets that it based itself upon even though we didn’t know (and some of us still don’t know) what these tenets or founding principles were or how they have been put down in writing. The spirit, it can be said, is regardless of the letter.

For those who are taking the recommendation by some activists that there should be in place areas where only women candidates would compete during elections as the only idea brought forth by the whole lot of those who are in support of this provision, or that this is the best idea that feminists, pro-feminists and women’s rights activists can and only bring forward, then we need to address the question of patriarchy to a better extent. We need to see how sexism, misogyny and hetero-patriarchy seem to grow out of or within our sense of democracy, especially parliamentary democracy. We need to see how they co-exist within an “egalitarian” democracy to the extent that one can hold patriarchal and democratic views within the same statement and still be correct under the current terms.

By taking a single, concept and imagining a wide range of people, beliefs and interpretations of the constitution as endorsing it in a way or another is engaging in a generalising form of anti-feminism, even misogyny. Those who refuse to devise or think about other ways with which we can effect this provision refuse intellectualism among other ways around the issue a chance at solving the problem while those who see no other way of thinking about the participation of both men, women and also persons of undefined/non-conforming gender in the political establishment, engage with the same anti-democracy they seek to get rid off in thinking about the constitutional provision.

I argue that the only way out of this is the dialectic “synthesis”; we must use the spirit of the constitution to determine what the letter of the constitution will be. We can decide that the constitutional provision will not be as easy to work with, but we must also decide how this action will disrupt (and even corrupt) the spirit of the constitution. We can also think about ways in which the constitutional provision can and must work, what democracy in Kenya should or would be if we were to have the elect-women-only areas, the gutting that patriarchy/sexism would take so that this would be possible.

For now, we watch. The cabinet says it will be looking into ways in which this provision can work and this is another opportunity, like lots of others brought about by the constitution, with which we can use to think about a lot of things, get to know a lot of tools and concepts and ideologies which are to be used in bringing about change in Kenya via the new constitution. I hope a lot of people get to think about what this provision means, for women, for democracy and for the future of this country.



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