Reliance on legal solutions won't solve all our problems

It’s at the heart of the civics - the government has three branches, the Legislature or the Parliament, the Judiciary and the Executive. The 2010 Constitution gave us another branch that is less talked about, the constitutional commissions.

The role of every branch of government is well defined; Parliaments make laws, the Executive implements the laws, and the Judiciary settles disputes.

Commissions seem to have taken some of the Executives’ work. Remember, one of the key objectives of the 2010 Constitution was to reduce the power of the president. 

But it seems we forgot that it can be circumvented through institutions and persons outside the Constitution. Some of the most powerful people in government are not necessarily elected. Lately, I have developed a keen interest in law. We think of law more in terms of breaking it and penalties, fines or jail terms.

But Kenya has fewer than 60,000 prisoners. This simply means the law affects us in other ways beyond jail or fines.

Laws are made to control our behaviour for the good of society. That is the spirit of law. Traditionally, laws were not written; they evolved over time and took into consideration the contexts.

That naturally made them more realistic. Proverbs are the best demonstration of good laws. Do lawyers and judges use our proverbs in legal arguments? 

Our current laws ought to be richer, borrowing from more sources and contexts. But I am concerned about single-sourcing and the unintended consequences. Contextualising the law is sometimes more important than the law itself.  Let me quote three examples. One is the constitution itself.

We overborrowed from the United States (US), a much richer and bigger country. Our counties mimic American States or German Länder (States).

But our counties are smaller and less endowed with resources. Tax revenues are low, and they depend on the national government to run their businesses, including salaries. 

We have two layers of government. The countries we imitate have three. Why don’t we have mayors? Municipalities form another layer of government, much closer to people.

That is common in South Africa and other countries with devolved systems. Why is the national government trying to do what municipalities do elsewhere?

Remember the Nairobi Metropolitan during Uhuru era? Do governors fear competition from the mayors? Why does Nairobi have a county government? Why did the framers of the 2010 constitution not see “Washington DC.”?

Why did we pick governors from the US and not drop nominated representatives?  Two is the Data Protection Act, which was borrowed from the European Union. Protecting data now seems more expensive and restrictive than making use of it. What was contextualised about data protection? 

The third is the Competition Authority of Kenya (CAK). A great idea; how many cartels has it dismantled? Are consumers getting value for their money in all sectors? Has CAK ensured more competition, which spawns innovations?

Think of the power and telcos sectors where oligopoly or monopoly reigns. 

Many will quickly argue that there is public participation in enacting new laws. Who is the public? How do we protect the new laws from vested interests?

How do we protect our laws from other countries willing to clone their laws in Kenya?

Such cloned laws make it easier for them to do business and invest in Kenya. Ever wondered why kanjú is so hostile to us?  The context keeps changing, and the law often plays catch-up. This catch-up makes it easy for the lawmakers to be insensitive to local contexts.

This makes implementation hard and counterproductive. In a hurry to catch up, the lawmakers often fail to do enough research and consultation. 

Think of artificial inteligence (AI) or gene editing laws.

We keep coming up with new laws. They are seen as a solution to our problems. Longer jail sentences are an “easier” solution to crime than creating jobs. 

Speed limit

Restricting free speech is easier than harvesting the great ideas that come with free speech. Reducing the speed limit is easier than building new roads.

It’s easier to cap the price of something than to increase its supply. It’s easier to impose a new tax on current income than create new income streams. We can make the list longer. 

Do we evaluate the effectiveness and unintended consequences of new laws?

Do we filter new laws through economics, morality, sociology, psychology, religion, our traditions, vested interests and other lenses?

A bigger worry for me is that repealing a law is always harder than coming up with one. Enacting new laws is one of many approaches to solving our national problems. We seem to over-rely on it. It’s cheaper and more expedient. Why not link new laws to the root causes?

Before I forget, I have a grudge with lawyers. Why is ignorance of the law not a defence? For lawyers and judges, the law is their food and livelihood.

They have been to law school and use the law every day. Why should they expect us to be at par with them?

That ignorance in law is no defence is pure injustice. Should I accuse a judge or lawyer of ignorance if he can’t explain Schrodinger’s equation or the escape velocity of a rocket? Over to my learned friends, I am ready for your rebuttals.