There was celebration in Mombasa following yesterday's High Court decision lifting the ban on the secessionist Mombasa Republican Council.
The MRC spokesman Rashid Mraja and scores of MRC supporters commended the judiciary for the decision and said the leadership would meet soon to advise its members on the way forward.
Waikwa Wanyoike, the executive director of the Katiba Institute welcomed the decision. The institute, which has been involved in the case as an interested party had argued that the ban was in violation of the rights of the MRC. The institute had argued that then due process was involved in the ban and the government did not have any credible evidence that warranted the banning of the MRC.
"We urge the Attorney General not to appeal the ruling. It is our view that the issues being advanced by the MRC require political negotiations. Using extra legal means to suppress expression (such as banning or advocating for the ban of MRC) is an archaic strategy that did not survive the promulgation of the new Constitution," Wanyoike said in a statement urging the government not to use extra legal means to suppress expression.
Last night, the AG Githu Muigai criticized the ruling. "The AG shall be appealing against the said decision of the court revoking the order of the Minister on the grounds that the court decision failed to consider the legitimate constitutional concerns of the government in ensuring that any group or organization challenging the constitutional authority and the national integrity of the republic of Kenya cannot enjoy protection by the constitution," the statement said.
The court decision was however criticised by six MPs who said it was insensitive to the 'delicate security' in the country. "What the ruling means today is that not only MRC is legal but all the other proscribed groups such as Mungiki, Jeshi La Mzee, Chinkororo, SLDF," said Naivasha MP John Mututho. They asked that a referendum be held to address the 'shortcomings' in the constitution which the Court relief on in reaching its decision. "It is unacceptable that a group which calls for secession of part of the country is now recognized. What if some group with the mind set of Al Shabaab rose to seek recognition?,"Mututho said on behalf of MPs Kazungu Kambi, Ntoitha M'Ntontiari, John Pesa, Victor Munyaka and Benson Mbai.
The MPs said the ruling was wrong and unacceptable to all "right thinking Kenyans.' "You don't have to be a judge to know that this country needs to be one," said Mbai. They said the ruling was akin to legalizing criminal gangs. "This decision is not good for the country, it is going to excite other gangs to sek recognition," Kambi who is also the Kaloleni MP added. Lugari MP Cyrus Jirongo said the ruling was a vindication of his publicly held position that banning special interest groups was inconsistent with the country's burgeoning democracy.
Describing the ban as denying the people their right to exercise their judgment, Jirongo said it represented a measure of direct political censorship which was ill conceived and inconsistent with a democratic society. "The alarming divide in Kenya cannot be healed by suppression of dissent. There can be few arguments for continuation of the MRC ban. We must condemn any system that regulates itself by declaring who cannot challenge it. Grievances must be discussed and resolved. Failure to do so is simply storing up trouble for the future," Jirongo added.
The MRC was among 32 groups which were banned by the Internal Security ministry in a gazette notice number 12585 published on October 18, 2010. In their ruling, Justice Francis Tuiyot, Justice Mary Kasango and Justice John Mwera declared the ban unconstitutional. The judges however advised the MRC to register itself as a political party as the secession demands it was propagating were a political issue. "Democracy is not a license to disorder or lawlessness. If MRC regards this decision as a carte blanche to disorder or lawlessness, they are on their own. Should MRC cross the line, then the State, as always, can invoke the law, including POCA (Prevention of Organized Crime Act)," the judges warned the MRC.
The judges were categorical that lifting the ban was in no way an endorsement of the MRC's secessionist agenda. "Any secession must be freely given by all Kenyans. It cannot be forced on them," said Tuiyot. The judges said the government had failed to demonstrate that the MRC was a threat to national security. In banning the group, the government had acted too quickly thereby denying the MRC an opportunity to articulate their issues.