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?

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