Kenya: Tightening Law to Combat Rampant Transplantation

Thomas Jefferson, the third president of the USA, declared: “When it comes to questions of power, people should no longer trust people, but rather bind them to disaster through the chains of the constitution.” Have we, through appropriate legislation and consistent action, made good use of the chains our constitution offers us?

On August 27, the constitution turned eleven when attempts were made to amend it. However, my main concern is how to get the maximum benefit from this, amendments or not. I am triggered by two proclamations from President Kenyatta and Chief Justice Martha Koome, respectively.

First, the president claims, albeit subtly, that the judiciary is still the weak link in the transplant war. Second, the CJ has an obligation to defend the Constitution and its promise to engage in collaborative dialogue with other government organs to strengthen justice.

Well, these are words of individuals regardless of their offices. And it will stay that way unless solid steps are taken to demonstrate commitment – at least officially. I commend the spirit of the CJ in offering an olive branch to the other two government arms. Instructively, the government arms are only formally separated.

Functionally, they should remain one even as they perform their main task – the control of the balance to secure the means and ends in matters of national importance. This is the basic theory behind the structure of the constitution.

Therefore, each arm should ask itself how best to help fulfill the letter and spirit of the Constitution. I take the example of corruption, because it is the greatest enemy that threatens the country’s development plans, be it the 2030 vision or the Big Four agenda.

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Separation of powers

While the President of Justice threw gauntlets at the feet, the public knows they have often complained about ambiguous laws and shoddy criminal investigations.

The most recent is the director of the public prosecutor’s office, who denounced laws that make their work difficult, where courts have leeway to release suspects through generous residence orders and restraining orders.

Which begs the question why the three arms cannot sit down and determine the best way forward. The President has several options in this case. As head of the executive he has the power to issue certain guidelines, regardless of the formality of the separation of powers.

In addition, he has the means to get the political class to work out determined, workable laws that support the war on transplantation, which means he has a voice in parliament – an advantage that even the Speaker of Parliament (the Speaker ) does not have.

The challenge is therefore simple. Let the three arms, away from the media, have an honest conversation. Let the judiciary and DPP point out flaws in transplant laws, and let the president – who is currently supported by both his government and the opposition – beg lawmakers to produce pieces from Chapter Six and other related writings the law of the highest sense.

Only in this way can justice be guaranteed, regardless of the man or woman in office. Otherwise, we have so little to celebrate what we call the world’s most advanced constitution if its letter doesn’t count.

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