Kenya: State Must Follow Law in Crackdown

Mzee Benjamin Nyangasi switches off his TV set which can no longer receive any signal after the government shut down analogue broadcasts.
7 February 2018
editorial

The government is sending the wrong signal when it decides which laws and court orders to obey and which ones to ignore. In a democracy, adherence to the rule of law and respect for institutions such as the Judiciary, are important glues that hold the country together.

However, when citizens and institutions like political parties observe helplessly as the government ignores the very laws it is mandated to enforce, it sends the message that impunity has been entrenched.

The danger is that this could lead others to also operate either on the fringes of the law or extra-judicially.

For a start, the arms of government must be seen to be adhering to and upholding the law, even when dealing with those whose views and actions they strongly disagree with and frown upon.

That is why it is important that the ongoing crackdown against opposition politicians associated with last week's oathing of Nasa leader Raila Odinga be done within the confines of law.

It is the duty of the government to maintain law and order and ensure the security of the nation.

In executing this constitutional mandate, the government must act lawfully and transparently and not be seen to be vindictive and opaque.

Two wrongs do not make a right.

Already, the opacity with which the police have handled the incarceration of Nasa-allied lawyer Miguna Miguna has sparked protests that have already led to the shooting of a protester. We must not walk down that route again.

If the government has credible evidence to justify the arrest and prosecution of opposition politicians and sympathisers, then it must pursue them to the hilt and prosecute them in an open court where they can get a fair trial and due process is accorded to the suspects.

It must apply the law, not just in the letter but, equally significant, in its spirit. However, the way things are being done, is rather worrying.

State officials are applying crude and unconstitutional means purportedly to correct perceived wrongs.

This is both illegal and unacceptable because it poses a grave danger both to those who are on trial and to the ordinary citizens, whose human and constitutional rights are at great risk of being rolled back. This is not the way a just, modern and democratic country ought to be run.

FREEDOM OF MOVEMENT

First, it was arrests and illegal confinements, which the courts have quashed. Then the government issued a directive to withdraw firearms. Now, it has resorted to withdrawing the passports of selected individuals to prevent them from travelling abroad.

Yet, freedom of movement is elaborately protected under Article 39 of the Constitution. The Citizenship and Immigration Act, Section 31 (1) (2), which has been cited in ordering the withdrawal, does not exist. Quite disconcerting is that these withdrawals of security, firearms and passports have been arbitrary and not sanctioned in law.

Whatever the case, it is the principle that is wrong from a human rights perspective.

The authorities are drawing from the old rule book to deal with an essentially new challenge, and which is purely political.

This is the reason most of the sanctions applied have been thrown out by the courts, and it is rightly because they are not tenable in law.

Those in government would help themselves if they interrogated the issues at play and sought the right prescriptions.

Experience has shown that high-handedness and intimidation do not work. In fact, they are counter-productive. Security agencies would serve their cause better by seeking proper legal advice before executing retrogressive actions at the behest of short-sighted politicians.

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