Were you one of those who did a Luhya celebratory dance when the new Constitution was promulgated? Did you clink beer bottles and feel in your heart of hearts that it was “a new dawn” and all of Kenya’s problems were now a thing of the past?

Perhaps not. I was one of those in fact who voted against it, not because the document did not have its merits but because I felt and still feel that not only were its defects going to have far-reaching effects, but some of its merits only looked good on paper and would probably not be implemented in the way they were initially presented to us.

I will neither go into a political rant nor flaunt my I-told-you-so smug look while citing all the things that have gone wrong already - although that would be quite fulfilling. I will only point out to you a very interesting omission from our exalted Constitution. It is an omission that did not even make it to the agenda for debate before the Constitution was passed because it did not seem that important. If you have read the Constitution and know it well, you may now be reviewing it in your head and trying to predict what I am getting at. Since this is a business law article, you will have narrowed down to certain chapters and articles. Even then, I bet you did not see this coming. The Article with the gaping hole is Article 46. See? That was a surprise wasn’t it?

Article 46 of the Constitution provides the basis for legal protection of consumers. The Article reads:

“Consumers have the right-

(a)   to goods and services of reasonable quality;

(b)   to the information necessary for them to gain full benefit from goods and services;

(c)    to the protection of their health, safety, and economic interests; and

(d)   to compensation for loss or injury arising from defects in goods and services.”

 At first glance, there seems to be nothing wrong with this provision but when you compare it to legislation from other parts of the world, you realise that most other jurisdictions include a clause protecting consumers from unfair or excessive pricing. It can be argued that the reference to ‘economic interests’ takes care of this, but in reality it is a vague reference if any. The implication of the omission is that there is no real constitutional basis on which to challenge unfair business practices such as arbitrary price hiking or overpricing by de-facto monopolies.

There have been claims that the omission was a deliberate one as it would threaten the profit margins interests of certain large business undertakings operating in the country. I cannot verify the claims but must concede that it does make quite a difference if I can charge you whatever I want knowing there is little you can do about it. Of course, the actual application of the Article may be subjected to constitutional interpretation by the Supreme Court and perhaps a learned friend or two there will rule in favour of the consumer. Or will they?