The idea that the process of making laws is messy has never been phrased in a catchier way than Otto von Bismarck’s oft quoted refrain
“Laws are like sausages, it is better not to see them being made.”
Kenyan’s got to see why Bismarck’s quote still rings true on December 18th last year when, on live TV, fistfights and scuffles broke out in parliament as MPs discussed the Security Laws (Amendment) Bill.
The Speaker of Parliament Justin Muturi, a real cog-in-the-wheel type, managed to pass the bill with the support of MPs from the ruling Jubilee coalition but not before he was pelted with documents and bulky parliamentary tomes by opposition MPs. It was a low ebb only possible in Kenya’s increasingly fractious and unyielding political climate. President Uhuru Kenyatta, reiterating for the umpteenth time why the Bill was important in the fight against in Al Shabaab, signed it into law the next day.
The feverish days before the bill was passed were consumed with partisan debate over its merits and demerits. Those in favour of the bill played up the president’s line about arming our security agents with the legal tools they need to nail terror suspects. Put simply: Terror suspects – constitution rights = less terror attacks. Those against the bill (yours truly included) argued that the Bill was a backhanded way of depriving Kenyans of their constitutional rights and that passing it would be a prelude to a return to the “dark days.” Or put another way: Constitution – Security Laws = dark days.
Predictably, the Coalition for Reforms and Democracy (CORD”) and the Kenya National Commission on Human Rights (KNHRC) filed a petition challenging the legality of the Security Laws in the High Court. This past Monday, February 23, 2015 saw the five-judge bench empanelled to hear the petition deliver its judgment. The judges struck out eight sections of the Act relating to the media, freedom of expression, bail, the right to a fair hearing and those relating to refugees and the appointment of a National Police Disciplinary Board for being unconstitutional. Media coverage since the judgment was delivered has focused on the broad strokes of the 231-page ruling and CORD’s victory lap coming as it does off their less successful appearance before the Supreme Court in 2013.
In doing so the media has failed to infer the real import of the ruling: the judges’ unanimous rejection of the impulse to nullify Kenya’s constitutional gains. The most potent argument for the Act was its necessity in the fight against terrorism like the Al Shabaab. That’s why the judges made sure to acknowledge that balancing constitutional liberties and security is fraught territory under any circumstances but especially so in the face of a bloodthirsty death cult like Al Shabaab.
The necessity of taking extraordinary measures against an extraordinary foe notwithstanding, the judges were adamant that Kenya need not gut its Constitution in the name of fighting terror.
“Insecurity in Kenya is not due to absence of laws but inefficiency of public bodies mandated to secure Kenyans,” read the judgment in part.
Also complicating matters for the government in the eyes of the court is Attorney General Githu Muigai’s own admission during the hearing that Kenya’s war on terror is hobbled by
“corruption and lack of coordination among security agencies.”
Given the comet-size holes that the judges were able to poke into the Act some are wondering how a Bill riddled with such patently unconstitutional provisions ever made it through to parliament for discussion in the first place. The simple answer to that is the Bill was a product of its time. By this I don’t just mean the climate of tension caused by sporadic but deadly terror attacks but the fact that the government had ample reason to think that the Constitution was a document of no consequence.
Let’s consider the evidence. The “Integrity” provisions of the Constitution were torn to shreds last year by the candidacy and election of several individuals with dubious track records. Several Cabinet Sectaries still hold on to private sector jobs even though the Constitution explicitly outlaws it. The government has instructed County Commissioners to stay in site even though the High Court has declared their positions to be unconstitutional. If its run-ins with the judges and magistrates vetting board is anything to go by, the judiciary itself is also not immune to ignoring the Constitution when it suits it.
By all accounts Kenya has one of the most progressive Constitutions in Africa if not on the planet. Staying true to the lofty values ascribed in the Constitution will not be an easy feat but it’s something Kenya must aspire to. The ruling on Monday reminded us that the Constitution is not just a dormant document that we should respect when we can but a guide on how we can be our better selves as a country.
Brian Obara is a lawyer and writer and the Nairobi County Editor for Kenya Monitor
