Archive | October, 2020

Maintain Law and Order, But Do Not Undermine Fundamental Rights and Freedoms

8 Oct

By Javas Bigambo

Kenya’s politics easily problematizes our nationhood. It makes a façade of constitutionalism with zealous artificiality and credulous dalliance with the rule of law. Nationhood requires shape, principle, direction and protection. That is exactly where the problem is in Kenya.

Constitutional provisions are not bread crumps under the table of governance, that can be swept away into the dustbin of authoritarian rule, or dismissed whimsically. They are hard-sought entitlements secured by protest-hardened and dauntless people, some living and others long departed to the world of the silent dead.

A Constitution is a distillation of aspirations, goals, dreams, and determination of a country’s citizens, providing for a framework of governance they desire, through a politically negotiated and legally binding document. It is for this reason that a plebiscite was merited, and for Kenya’s case, overwhelmingly endorsed.

As a matter of fact, good governance demands constitutional efficacy, and that efficacy seems to be Kenya’s Achilles’ heel.

Constitutional efficacy is inclined toward transformative constitutionalism. Karl Klare puts it clearly by stating that transformative constitutionalism entails “a long term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.”

We are living in times when a Deputy President flagrantly insubordinates a sitting President, a manifestation of moral putrefaction. Times when a sitting President seems unable to properly fight corruption, hard-pressed to reduce public debt, and so shy to manage the ambition of his deputy. Times when citizens have contentedly embraced the physiognomies of a flag and permitted themselves to be swayed whichever way by the winds of politics. I hold that there must be no duality in constitutional efficacy and the application of the rule of law.

There is a serious lack of constitutional morality on the part of the Executive arm of government. Right from the Executive’s penchant for disregarding court decisions (while running to the same courts for protection), to issuing directives in under the shelter of the Public Order Act, directives that spit on the shiny surface of protected rights, to issuing Executive Orders that partly frown at the Independence of Constitutional Commissions.

In the not so distant past, a young boy refused to shave his hair, and with the support of his parents, they faced off with the school administration in court, in what culminated into a victory for freedom of religion and freedom of expression, altogether domiciled in Kenya’s Bill of Rights.

We must not permit ourselves to have a weak legal system, though we seem to have began a journey down that dark ugly path.

While attempting to put off the embers of political violence, the government must not overstep the utility of the Public Order Act and violate fundamental human rights, which among them include the freedom of movement, assembly and speech.

I have listened carefully to the directive by the government on matters hate speech and political engagements. Kenya’s Bill of Rights is so rich that it appreciates the right of everyone to be different, and a right to hold opinions that vary, different faith, to assemble, and to engage in political activities, and to freely exercise speech, as long as it is reasonable and within the margins of the law. Scaremongering must not be a lifeline for wielders of power. The rule of law must be the shining light for all, not some.

The Bill of Rights[1] forms the sovereign blueprint for the recognition, protection, promotion, fulfillment, enforcement and limitation[2] of human rights. In a bid to ensure the enjoyment of human rights to the greatest extent, the law provides that:

A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.[3]

Article 21(1) of the Constitution provides that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. In democratic governance, rights and freedoms are more than pious aspirations. They form part of the law. It is the duty of the state and every state organ to observe, protect, promote and fulfil the rights and fundamental freedoms.[4]

Importantly, Article 259 (1) (a) – (d) of the constitution provides: –

“(1) This Constitution shall be interpreted in a manner that— (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.”

Of course, DP William Ruto should conduct his politics in a manner that threatens the breach of peace. On it’s part, the State must as well ensure good governance by adhering to the rule of law, and demonstrate respect for the courts.

If DP Ruto wants to be President, it is his ambition. Such ambition is protected as well. In the case of International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR, where the court stated that every adult citizen has the right to be a candidate for political office in a political party of their choosing without undue and unreasonable restrictions. [5]

Deputy President Ruto must however be reminded that he is part of the Jubilee administration, and must therefore work hand-in-hand with President Uhuru Kenyatta to deliver on their mandate, before he seeks new mandate on his own. It is for this reason that the people have a right to hold the Jubilee government accountable, including DP Ruto.

The death of the Murang’a two, and the attendant violence must be unreservedly condemned, because all was politically instigated. The church must as well be careful not to lose its saltiness. They should not be seized by the spirit of Biblical Judas Iscariot, then proceed to betray the cause of independent spiritual nourishment of mortals merely for legal tender.

It is on the basis of these freedoms that people can be active citizens who get involved in political matters and are able to express their concerns and promote their interests.[6]  The Constitution provides for the Bill of Rights whose primary role is to protect social, cultural, economic, political and civil rights of citizens. Kenya has gone ahead to ratify and sign various treaties and conventions that relate to the protection of fundamental human rights and freedoms.

Curiously, the civil society has been disturbingly quiet in the face of consistent violations of various rights, and brazen attempt to overthrown or undermine constitutional provisions by the government. A political system without a genuine civil society cannot legitimately claim to be a democracy[7].

The civil society has an obligation to educate citizens on their democratic rights and responsibilities to help in attainance and sustenance of democracy.

The upshot is that it is the government’s responsibility to ensure the adherence of the rule of law. But the same government must not make an unnecessary attempt to constrict fundamental rights and freedoms in a manner that undermines the essence of democratic governance. We have to guard against excesses. Even the lion, the king of the forest, protects himself against flies. The rule of law should be no respecter of persons, whether high ranking government officials, key political figures or their family members.

Javas Bigambo works with Interthoughts Consulting


[1] See Chapter 4 of the Constitution of Kenya, 2010

[2] For example, see Article 19 (c) as read with Article 24 (5) and Article 58 (6) of the Constitution of Kenya 2010.

[3] See Article 24 (1) of the Constitution of Kenya, 2010

[4] Constitution of Kenya 2010, Art.21

[5]Petition Nos 552, 554, 573 & 579 of 2012 (Consolidated).

[6] ibid

[7]Cohen, Jean L., and Andrew Arato. Civil society and political theory. MIT press, 1994.