Friday, 27 July 2012

Secession politics and law enforcement

The ruling by the high court in Mombasa regarding the banning of Mombasa Republican Council and lifting of the ban was quite a surprise, I am sure, to the government. No doubt, the weakness of their case against MRC and lack of preparedness in contesting MRC’s petition escaped their notice. I think it really is in line with the judicial process for the Attorney General to appeal the ruling; it’s a pity that it had to come to that though.

The judges’ ruling does speak to very fundamental principles enshrined in the constitution. The freedoms and right to associate, to agitate for one’s interests and concerns, and even the right to self determination are essentially the rights enjoyed by every Kenyan, and with the lifting of the ban, MRC now can also enjoy those rights.
An irony really, seeing as the MRC still insists on their secessionist agenda, they are convinced that they are not Kenyan. What is truly interesting is the judges’ directive to MRC to legitimize themselves and their agenda by forming a political party. To do so, MRC would have to acknowledge the Kenya government and registrar of political parties ergo recognize Kenya’s sovereignty.

Were MRC to succeed in their secessionist agenda, they would have to seek amendments to the constitution that would allow for secession. This would have to take place after a referendum in which all citizens would participate. Legally speaking, the lifting of the ban now places MRC in a very tight corner.

If MRC still wish to pursue their secessionist agenda, yet remain legal, they firstly need to form a political party. To be able to amend the constitution, MRC will have to comply with Articles 255, 256 and 257 which deal with amendments to the constitution. Among the conditions to be met include 20% of the registered voters in each or at least half of the counties should vote in the referendum. MRC would need to introduce a bill to parliament to amend the constitution, or they may attempt to have an amendment by popular initiative. Such a popular initiative requires signatures from at least 1 million registered voters.

Also, there is the conundrum presented by the very slogans used to agitate for secession. The judges made it very clear that MRC’s chants, slogans and “agitation for secession” might constitute hate speech, propaganda for war, incitement to violence or advocacy for hatred, which is “unconstitutional and criminal”. Which brings us to the question: How does one agitate for secession without chanting against the state from which you wish to secede?

What this ruling did to MRC seems rather clever. Legally, it was an overture to freedom of speech, assembly and association, technically and practically it was a strategic gag. In essence, were MRC to strictly follow those guidelines and the conditions necessary for amending the constitution, the group would simply cease to logically exist or function.

It’s the sort of clever ruling that makes you admire how the government views law enforcement, in light of the new constitution. Gone are the days of “shoot to kill” orders and heavy handed suppression of dissent. While the police and the prosecutor’s office remains largely incompetent in their ability to respond to petitions against their activities, as well as seemingly incapable of providing sufficient evidence to back their charges, the judiciary is aptly picking up the flak on their behalf. All the while appearing impartial and delivering surprise judgements.

Its even admirable how the government is now willing to open dialogue with MRC, in order, no doubt to try and quell the dissidence. I am not sure if the TJRC would help the situation as concerns historical injustices and grievances, but certainly their involvement would be appreciated.

All in all, one has to admire how the government views dissent and how to engage dissenting groups. Seemingly, this ruling favours the government so what does the AG hope to gain by appealing the ruling?

Friday, 20 July 2012

County Commissioners are Crucial to Transition.

The appointment of County Commissioners by the President has become one of those legal hiccups that ultimately accompany the implementation process of a new constitution. When Lady Justice Mumbi Ngugi ruled that the president’s appointment of the 47 County Commissioners was unconstitutional, it really was not a win for the citizens. The need for security and administration to be ensured even as this government transitions to a devolved system was clearly overlooked.

At the moment, Kenya is a country undergoing fundamental change in the way the government runs things. It’s no secret that Counties such as Uasin Gishu were the worst hit by Post Election Violence, a matter that has been repeatedly raised by the residents. In their appeals, they have asked that the County Commissioners be left in place so as to smoothen the transition of government even as the general elections come up. No doubt, the scale of the violence they experienced is still fresh in their minds.

The reasons presented to challenge the constitutionality of the appointments can only be described as a simplistic approach to a serious challenge. The argument of application of the 1/3rd gender principle indicated that were the 47 Commissioners of the right gender, then the appointments would be acceptable. The arguments of consultations with the Prime Minister’s office indicated that were such consultations done, then the appointments would be acceptable. In the determination of said appointments being unconstitutional, the remedy for the situation was never considered. How indeed, is Kenya going to transition to a new devolved system of governance if there is no longer a provincial administration at the county level and also no County Commissioner?

This was not just a matter for constitutionality. Indeed, the ruling should have taken into consideration the grave matter of national security as administered at the county level as well as other services to be rendered by the Office of the President. Where is the remedy for the residents of Uasin Gishu?

It’s becoming clear that even as Kenya implements the new constitution, there are several opportunities for well meaning activists to cause more harm than good with overzealous approaches to matters of governance. We should indeed follow the letter of the law, and in the spirit of the law, provide legal alternatives.

Its why, though Attorney General Githu Muigai did give what in his legal opinion is the better course of action given the probabilities of winning an appeal, acting Internal Security Minister Yusuf Haji is also right in seeking an appeal. It’s his job to ensure that the security of the country is not put at stake especially as we approach the elections and especially in the face of terror threats and bombing incidences. An appeal can give him the sort of relief that can allow him and the government time to ensure that security apparatus are adequately prepared for the elections, and the expected transition of government.

As the residents of Uasin Gishu will testify, the threat of political violence is very real, and not something that should be determined by the gender of Commissioners. Certainly, the matter of security at the County level should not be left to politics of consultations by the President over matters in his own office, either. I mean let’s face it, these posts were not expected to be permanent appointments anyway, because when the new government takes over, the process of appointment would surely be redone.

In arguing against the constitutionality of the appointment of County Commissioners, detractors also argued against the fundamental rights to security of Kenyans who already have suffered greatly during elections because of politically instigated violence.

What is necessary is circumspection. An approach to the new government and constitution that is not only legally sound, but also takes into consideration all the responsibilities and functions of the government and the implementation of those functions. As it is, Kenya still does not have a solution for the situation at the County Level, and that leaves us all in a state of limbo. For the residents of Uasin Gishu and other Counties that experienced PEV, limbo is not a state they wish to remain in. This matter needs some sincerity and commitment from all of us lest the events of 2007/08 are repeated.

Friday, 13 July 2012

Integrity issues and the Civil Society

Integrity is the catchword for the 2013 elections. According to, integrity is a noun that means honesty and the state of being whole; adherence to moral and ethical principles; soundness of moral character; moral uprightness.

Chapter 6 of the Kenya constitution goes further to define clearly what integrity and leadership should be about in Article 73 (2) and how those principles are applied to State Officers.

In the coming elections, a lot of new parameters and instruments will be in place as concerns integrity. There is the IEBC, who have stated that they will require that each candidate receives a certificate of clearance from the Ethics and Anti-corruption Commission. There is the NCIC that will be (hopefully) keeping an eye out for Hate Speech Vis a Vis Freedom of Speech among other activities that may threaten the stability of the nation. There are several campaigns ongoing that promote a nationalistic spirit among Kenyans, a denouncing of tribal focused politics and cohesion among the different communities in Kenya.

In fact, the Kenya government seems to have vigorously sought to put measures in place so as to avoid at all costs a repeat of the controversies, violence and power brokering that occurred during the last elections. All that is left thus to wrangle over, is the matter of integrity of the aspirants.

The civil society through organizations like the Kenya Human Rights Commission now seeks to define who fits into the bill, as far as integrity and leadership is concerned, and to do so for the electorate. What is rather hypocritical about this stand are the blatant undemocratic values in such an ideology. The idea that a non-elected, non-governmental society can seek to pre-select candidates for democratic elections is truly a hatred of democracy in that the principles and choice of free, fair and representative elections and democratically elected leadership is wrested from the fingers of the electorate. You cannot pre-select candidates, for elections.

I am sure the civil society considers themselves in many ways to be pseudo-experts in matters of defining integrity. So much so, that even the IEBC, even the Ethics and Anti-corruption Commission, even the Kenya Judiciary and especially even the Kenyan electorate can not figure out what thresholds political aspirants should meet, such that the civil society must decide for us.

This hullabaloo is rooted in the matter of two presidential aspirants being suspects charged at the ICC. The underlying fear behind this is that both may end up on the ballot, yet they are suspects charged with grave international crime. So the general logic is that suspects of such severe crime should not be allowed to vie for elections, regardless of what their constitutional rights are, regardless of the principles of democracy and justice and regardless of the outcomes of the cases.  It’s mentally disturbing how this logic came about. Apparently, several members of the civil society have a problem understanding the first principle of justice in court matters, that is, that one is innocent until proven guilty and that innocence ties in directly to one’s integrity.

It’s not rocket science after all. Until and unless, an aspirant is proven beyond all reasonable doubt and all appeals seen to their logical conclusion and that aspirant convicted and incarcerated, that aspirant is innocent and has the constitutional right to vie for an election. Seeing as the civil society is not the judiciary, neither are they the trial judges at The Hague, the push to exclude suspects in court cases is not only an injustice, its undemocratic and also unconstitutional.

Moreover, the civil society has no powers accorded to them by the electorate to act as judges or vetting boards. They in fact are acting in contravention of already established bodies, such as the Ethics and Anti-corruption Commission, by making these demands. I truly wonder what sort of contorted criteria they are using to come up with the notion that they should in fact conduct such vetting of persons to be on the ballot.

Perhaps we as the citizenry are not as legally savvy as the civil society. But we do know what our democratic right is, and we do know how to read the constitution and we also know what a verdict in a court case means for State Officers. So please, can the civil society show some respect for our opinions, our democratic right to vote for our preferred candidates and the universal principles of justice and freedoms in a democratic society.

You cannot one minute be champion advocates for our democratic right to vote and the next minute curtail those rights and freedoms by pre-selecting who we should vote for. I sincerely wish the civil society would just embrace democracy and justice for its universal applicability and not attempt to distort issues with some sense of twisted morality; I mean really, that’s a lack of integrity.

Tuesday, 3 July 2012

Suppression of Constitutional Rights Breeds Terrorists.

This year is turning out to be a very dangerous one for Kenyans. The escalating rate at which grenade attacks are occurring in the nation is not only alarming but repeatedly underscores the failings in the National Security policy of this government.  It’s an explosive new world and our security apparatus is moving at a snail’s pace in comparison to criminals whose murderous intentions seem rather unclear.
I am not going to point out the fact that surely by now a commensurate increase in resources for internal security forces while supplying resources for KDF in the war against Al-Shabaab would have naturally occurred if we indeed do have “Intelligence” services. 
Actually what I am most concerned about is our perceived enemy, who are yet to identify themselves.  Of course, the media, and politicians have quickly decided that these sustained attacks are done by terrorists. I agree, the attacks are terrifying, but terrorists tend to be a definitive group of offenders. For example, the one terrorist group we know that KDF is fighting is called Al-Shabaab. Funny enough, Al-Shabaab haven’t taken any responsibility for these terror attacks.  Not a peep, video, press release, tweet or status update about a single grenade attack in order to claim responsibility.
The fact that Al-Shabaab isn’t claiming responsibility should actually be reassuring really. We are winning the war against them, they are no longer effective. But because Al-Shabaab isn’t claiming responsibility, it’s even more worrying, because we don’t know who is doing these attacks. We do know this, whoever it is; they are organized, ruthless and seem to have a central arsenal of weaponry, given the devices they employ. We also know that they are criminals whom the internal security forces are having the damndest time tracing and arresting.
So what is the proposed remedy to this? Well, rather than increase the resources our police force requires to do the job of providing security across the country, the push by politicians is to enact the Suppression of Terrorism Bill 2003. As the Vice President blew the dust off this truly unconstitutional document and heralded it as the ultimate solution to the problem at hand, a logical fallacy gave birth to a paradigm which ultimately will result in a self-fulfilling reality.  

The fallacy being that terrorist activities require legislation beyond that which covers criminal activities; giving security apparatus extended and unlimited powers and jurisdiction and the paradigm being that terrorism is of such unique threat to national security that citizens are obliged to have their constitutional rights and privileges abused in the name of being kept safe.
Kenya is now moving into very dangerous waters with this bill. It’s no secret that the USA Patriot Act and the Anti-Terrorism Act of the United Kingdom gave the security agencies of these two countries extensive powers to pursue, prosecute and detain immigrants and suspects whether they were citizens of these two countries or not. It’s also not a secret that the actions of security and military forces from both the US and the UK have directly or indirectly created more potential terrorists and insurgents around the world due to the excessiveness and abusive nature of their actions. 
Why would Kenya seek to adopt similar legislation at this point in our fragile democracy? Lest we forget that our police forces are known for their human rights abuses already, that there are reports on the abuses by KDF forces in Somalia and that Kenya is not known for its due process when it comes to the judiciary and justice for victims and perpetrators. In fact, it is because of these failures that Kenya currently ranks 16th out of the top 20 countries in the world in the Failed State Index of 2012.
So now, in addition to being a failed state when it comes to the Judiciary, the state of security of our nation and our borders, we also wish to add to that pile of failures the denial of constitutional rights and freedoms by security forces. Each action to curtail freedoms of the citizenry by monitoring, arresting, detaining, seizing assets and removal of persons without charge is a nail in the coffin of democracy in Kenya. Each time such an end to democratic rights occur another “terrorist” is born. Because as they say, ‘one man’s freedom fighter is another man’s terrorist.’
It is of course completely ludicrous at this point for any group of people to thus claim that they or their community is being targeted by the Suppression of Terrorism Bill 2003, on the basis of religion or ethnicity. The nature of the bill is such that citizens’ rights will be oppressed and suppressed regardless of religion. Neither is religion used as a basis to act on suspected terrorists. In other words, just because you are Muslim doesn’t mean you will be targeted, and just because you are not a Muslim doesn’t mean you will not be targeted.  The bill is not about religious persecution, it’s about general persecution of everyone in the country.
Kenyans, let’s not allow paranoia to rule the day, lets actively protect our constitutional rights and privileges or we will end up with more terrorists and less freedom and no security.