Understanding Legislative Power pt.2

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants -Thomas Jefferson

Rome again. 131BC. A man runs through the street. Behind him in hot pursuit, an irate mob of toga totting elites. He is finally cornered and clobbered to death. His body thrown off into the Tiber and his enemies thought themselves rid of a problem. Well the problem was still there. They had just killed Gaius Gracchus, a Tribune of the Plebs, one of the worst crimes in Roman law. The Tribunate was an office set up during the many cessations of plebeians, folk from the lower classes, as a check on the elitism of the Roman Senate. Tribunes were directly elected by the people to ensure that the laws issuing forth from the Senate would be amenable to their wishes. Not only was this such a horror, but add to it that Gaius' elder brother Tiberius had been murdered by the same Senatorial mob two years prior for exactly the same reasons...they stood in the way of unfettered greedy land acquisition by Senatorial elites. That very day the Republic died with the death of Gaius.

A bust of Tiberius and Gaius Gracchi

Legalized Plunder

The problem that the Gracchi brothers faced was a political class that had perfected the art of misusing the law. Law, by definition and hence by nature, is meant for the protection and preservation of the rights of the governed. A law is supposed to be good, there is no room for bad laws. And why? because a law is "a general rule made in advance that is to be obeyed by all and should not be burdened with a vast array of details" (Dr. Larry Arnn) This particular critical epithet of laws is borrowed invariably from the Originator of Government and of Laws:

The law of the LORD is perfect - Psalms 19:7

What then is taking place whenever bad laws are enacted is a manifestation of what that great mind Frederick Bastiat termed as legalized plunder. You see, any law that is not meant for the protection of the rights and liberties of all citizens, by default becomes a way to legalize the very thing law and government is there to prevent. Bastiat comes with all my possible recommendations. In his excellent essay titled "The Law" he makes note of the following.

Unhappily, law is by no means confined to its own sphere. Nor is it merely in some ambiguous and debatable views that it has left its proper sphere. It has done more than this. It has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst Rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it. - The Law, pg 4.

Nothing is more responsible in all history for arresting the development of nations than this disgusting misuse of law. Men who cannot govern themselves get a hold of the State's instruments of violence and...

This inevitable phenomenon, combined with the fatal tendency that, we have said, exists in the heart of man, explains the almost universal perversion of law. It is easy to conceive that, instead of being a check upon injustice, it becomes its most invincible instrument. - Ibid, pg 6.

What then takes place consequent to this perversion of law?

Res Novus

A picture from the Anti-Finance Bill protests

I have always criticized the 2010 Kenyan Constitution. My friends know this. I saw the many and blatant violations by the Uhuru regime and my conclusion was that the framers of this constitution were imprudent. They gave us a toilet paper constitution as it seemed that this is how it was used. A constitution that cannot protect itself from violations is a useless piece of paper with nice words. Never in my wildest dreams could I imagine recent events. It is clear now that while the Parliamentary changes at Naivasha somewhat gutted the original document something I was very salty about, the framers quietly sneaked in a nuclear option right there in Article one clause (1) & (2).

(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

(2) The people may exercise their sovereign power either directly or through their democratically elected representatives.

GG well played Prof. Ghai and team. I don't think people even realize how powerful these words are. My apologies to our Constitution, I was not familiar with your game. The whole constitution is contained within these two lines. A constitution is meant for the governance of the government. The various details that follow are mere appendages to these two sentences. This is Kenya's version of what is contained in the American declaration of independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is the principle of perpetual revolution. Revolution comes from the Latin Res Novus, new things. It simply means here that when plunder is legalized, another God given right is activated by the sovereign people, one hitherto unused. The right to alter or abolish their form of government and institute new government that shall defend their rights. Or in the words of the framers of Constitution of Kenya 2010, The People may exercise their sovereign power either directly or through their elected representatives. This war was already won even before it started. Proclaim liberty in all corners of the Republic. Long live the constitution! When the dust clears and this is all over, we will honor our dead with bronze statues on Parliament grounds.