Constitutionality of Anarchy: A Bug or a Feature?

“The state of nature is indeed to be preferred to authoritarianism”

~John Locke-Second Treatise of Government. 

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Among the common characteristics of the Uhuru and Ruto regimes is their disregard of the constitution and court orders in a blatant manner! Less than a year into office, Ruto’s regime has already disregarded the constitution with the appointments of his 50 friends to illegal offices. Despite a court order, he went ahead and increased fuel prices. If nothing is done, Kenyans will live to regret feeding a venomous serpent. Its head should have been crushed as early as yesterday. But how and by whom?

Thomas Hobbes and John Locke, in their social contract theories, differ in the structure of government. While Hobbes leans towards an absolute leader or monarch, Locke leans towards a limited government through separation of powers, hence checks and balances. For Hobbes, separation of powers would lead to the very thing sought to be avoided: lawlessness, when equal arms of government are antagonistic. Locke says lawlessness is to be preferred to authoritarianism. For Hobbes, sovereignty resides in the monarch, and for Locke, sovereignty resides in the people. Locke argues that there are certain inalienable rights (life, liberty, and property) that people come within a social contract, without which there is no reason to have the contract. That is, not even the monarch or president can alienate those rights. When those rights are alienated, then it is better for man to induce anarchy. Ruto has killed demonstrators. Ruto has tried hard to suppress the right to demonstrate. Ruto illegally takes people’s money (properties) through an unlawful fuel levy. Ruto used the people’s money to pay illegally created "public" officials.

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The Constitution of Kenya 2010 is a Lockean document; that is, Article 1 (1) states that all sovereign power belongs to the people of Kenya. Article 1(3) further states that this power is delegated to the three arms: the executive, judiciary, and parliament. There is a manifest separation of powers. Article 23(1) gives the judiciary the power of judicial review, and its decisions shall bind all people and state institutions. Killing demonstrators goes against their right to life and liberty in their political pursuits (articles 26(1), 37, and 24(1)). Ruto clearly reads from Thomas Hobbes' absolute document, not the Lockean limited government document.

If the Kenyan constitution is a Lockean document, then the solution it must offer when the executive becomes authoritarian is a revolution.

Article 2(1) of the constitution provides that "no person may claim or exercise state authority except as authorized under this Constitution." By whose authority did Ruto appoint 50 friends to state office? By whose authority did fuel prices increase? By whose authority are demonstrators being killed, detained, and denied liberty? Article 3 (1) and (2) demand that Ruto uphold and defend the law, and an attempt to do otherwise renders his authority unlawful. And if it is unlawful, then the remedy is to compel him to act lawfully.

Suppose a corrupt president has corrupted parliament to the extent that his removal is impossible according to Article 145; the Lockean thesis gives people liberty and power to remove him directly. A revolution is constitutionally justified in Article 1(2) because people, being custodians of sovereign power, can exercise it directly.

Anarchy and revolution are features of Lockean governments, not bugs.

Joshua Onsase is a first-year student at the University of Nairobi Faculty of Law, Mombasa Campus.

He can be reached at abc.law.mombasa@gmail.com or 0702012709