We have reached a situation where majority of Kenyans know the law. From the standpoint that ignorance of the law is no defence, it is a good thing that everybody is fully aware of the Constitution and laws that govern the country. Further massive civic education has been undertaken to ensure that there is widespread awareness on the laws that govern the country and the responsibility of both leaders and citizens.
Over the last few weeks though I have asked myself, why, despite the high level of awareness, is there such a debate about law and legal provisions. In Many instances you will hear lawyers telling you when explaining a controversy that the law is very clear and proceed to give you their version of what the legal solution to an issue should be. This sounds all too nice until a second lawyer says the complete opposite, again with the rider that the law cannot be clearer than what he/she has stated. One is left wondering which is the correct interpretation?
The situation has been compounded in the recent past with the increase in the number of legal experts. First even for lawyers, there is always contestation about the meaning of legal provisions. That is why law is a profession. Lawyers exist to help clarify meaning of legal rules and to help citizens to understand the implications of those provisions. Whenever there is a deviation from the law, lawyers will help to ensure that legal mechanisms are used to ensure compliance.
This sounds straight forward. However, watching media debates nowadays, a citizen will be left confounded as to why such simple and clear provisions on how to deal with the law and legal rules are not being followed. Part of the challenge is that many of us have become lawyers, even though we are not even aware of the basic rules of legal interpretations. To be sure law is not the preserve of lawyers. In any case, law is not made by lawyers.
However, the manner in which all of us have become legal experts brings into question the relevance of the legal profession. When should one rely on lawyers when speaking about law, and when should every Kenyan be relied upon to explain what the meaning of the law is? Unless we clarify this question, we will continue having situations where ordinary citizens are left confused.
Secondly, lawyers have assumed that they have the solution to every problem. In this position they have been joined by all Kenyans. Every law student as part of their studies is taken through a course of Jurisprudence. Part of that course discusses the limits of the law. It recognises that a society has to be governed by the rule of law.
Laws are important for giving the rules of how a society such should be governed. However, laws are tools of social engineering. Like an engineer they help to govern and mould society. On the other hand, society helps to shape law. The relationship between law and society is consequently symbiotic. However, there are many schools of thought. You will hear of some calling themselves positivists which is about law as written in the books. There are also naturalists whose questions is about law as aligning to a higher moral order.
We also have realists. In interpreting rules, we have to pay attention to what lens of governing our interpretation. This explains why sometimes lawyers will disagree on the true meaning of words and legal provision.
What does this mean for us as a country. Several things. It means we have to accept that the reason why we have institutions and rules for legal interpretation is essentially so as to resolve any difference in meanings that will necessarily arise in the process of application of laws to our daily affairs. Unfortunately, we have, in the process of converting all of us to legal experts avoided engaging in rules of legal interpretations. Positivists argue with naturalists based on their perceptions without being honest about those perceptions.
The perceptions are also sometimes unfortunately clouded not just by our lack of clarity on basic rules of legal interpretation but also by convenience. We start from the desired end and work backwards. As a consequence, our legal positions change depending on circumstances. This cannot portend well for legal certainty in a country.