Page 8 - THE RHINO Issue 001

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A CASE FOR EXTREME LAW: KENYA MUST CREATE LAW UNDER THE DOCTRINE OF CIVIL NECESSITY!
BY JEAN MBUTHIA OUR COLUMNIST
Jean is a Legal Advisor.
Kenya is headed for a crisis. Not a resurgence in corona virus cases. But a political and legal crisis. The stand-off in the Executive will precip- itate a crisis. And that is not necessarily a bad thing. You only use the doctrine of civil necessity when you are in a political and legal crisis. This is not bad because solutions born out of civil necessity are the product of honest, bare-knuck- le negotiations. They are also the only solutions this country understands.
Necessity is both a defense and a justification
for unlawful actions that are necessary to pre- serve life and political stability.
We use the doctrine of civil necessity because the Constitution is not a panacea for all political crises. It may anticipate some but it cannot foresee all. There are certain situations where a government must go outside the provisions of the law to save the state from ruin. To pre- serve the public good, necessity will make lawful what was previously unlawful.
It was previously unlawful for a person to swear themselves in, then enter into a peace pact with the President. Necessity made it lawful.
The National Accord of 2008 was negotiated and signed under the doctrine of civil necessity. It was then made law through the National Accord and Reconciliation Act and inserted in the old Constitution.
Necessity is the first and original source of law. This is not my thought but I agree with it. It was said by Santi Romano, an Italian jurist and intellectual. Necessity cannot be regulated by the prevailing law. Ne- cessity disregards the existing law and makes its own law. It creates a new law that will govern and regulate the unique crisis that required its use.
But we must pose a critical question, can the Courts overturn an ac- tion required under the doctrine of civil necessity? Would Maraga or his successor risk plunging this country into chaos and anarchy using the law as their shield? They dare not. Yes, the Judiciary is mandated to interpret and protect the constitution but it would be a suicidal judiciary that esteems the letter of the law over the survival of the nation.
Therefore, when the crisis comes, and it is coming, my prayer is for the President to use the doctrine of civil necessity.
The Nigerian National Assembly acted out- side the law in 2009 when they appointed Goodluck Jonathan as President and Com- mander in Chief of the Armed Forces. The Nigerian law did not authorize the National Assembly to pass such a resolution.
Necessity allowed them to do it. Necessity permitted the Nigerian National Assembly to bypass the Constitution in the short-term to preserve democracy, law and order in the long-term.
THE RHINO
Speaking Facts to Stupidity