YASH PAL GHAI : Security Bill wears away the rule of law


JF-Expert Member
Jan 30, 2008
Security Bill wears away the rule of law


Parliament buildings. Photo/Monicah Mwangi

Wednesday, December 17, 2014 - 07:40
By Yash Pal Ghai


Uhuru Kenyatta has introduced a wide ranging Bill on security laws derogating from the constitution in several respects. He asserts that the amendments are “good and compatible with the constitution”. This is inaccurate, whether out of ignorance or deceit I cannot tell.

The Bill will restrict our fundamental rights and freedoms, reaffirm the mission of the police and the army as oppressors of the people, enhance the powers of the president at the expense of the legislature and the judiciary, vest the executive with wide discretionary power not subject to accountability, greatly diminish the quality of democracy, undermining the separation of powers and the rule of law.

It is odd, but perhaps in keeping with the attitude of the government, that amendments on such a sensitive matter as security can be rushed, excluding most Kenyans from consultations or participation (in breach of the constitution). The Bill has been available to the public only for a few days. It is lengthy, covering many issues, not all related to security. The mixing of at least 22 Acts in one Bill adds to its complexity and detracts from careful analysis.

It is against parliamentary tradition that so many, disparate laws should be amended in what amounts to one Miscellaneous Laws (Amendment) Bill. That is a device, as the explanatory memo to the Bill explains, confined to “minor” amendments. That the government considers that the proposed changes are minor validates the assessment of numerous Kenyans that this government has no respect for the constitution, particularly democracy or fundamental rights and freedoms.

If parliament were serious about its role as the protector of the people, it would refuse to vote for it this coming Thursday, as pressured by Uhuru. The speed with which the Bill is being rushed is against the deliberative process that the constitution prescribes for legislative process.

There is little evidence that the Bill was preceded by any serious analysis of the causes of terrorism which the government claims is its justification. The inefficiency of and corruption within the police and army is disregarded, and the seeds of further disorder are planted as these two forces are vested with increased powers, sheltered from any accountability.

The president will get absolute control over these forces and the NIS, through their heads, displacing the constitutional scheme which gives the police operational autonomy and the Police Service Commission’s disciplinary control.

In this indirect way the president will get greater influence over “security” in counties. New presidential powers are acquired at the expense of parliament and the judiciary.

The massive restrictions on the freedoms of association, assembly, expression, personal liberty in a number of ways (including detention for long periods without trial), the invasion of privacy and the criminalisation of various acts bearing little relationship to terrorism will increasingly make Kenya a police and army state. The rights of equal citizenship, cherished in the constitution after earlier discrimination against Muslims and Asian, are now at risk. The connection of many of these restrictions to terrorism is unclear.

Indeed it is very likely that these restrictions and criminalisation will force quite legitimate activities underground. Instead of expressing themselves publicly through rallies and demonstrations, people will start meeting quietly and perhaps secretly. Disaffection will grow. The Muslim community in particular will feel targeted and vulnerable, undermining leadership committed to peace and harmony. Uhuru will have laid the foundations of terrorism.

These amendments go counter to the orientation and values of the constitution. The key objectives of the constitution are nation building, creating national unity through common citizenship, recognition of diversity, and protection of fundamental rights and democracy, national values and principles which emphasise inclusion, social justice, equality; institutional characteristics and relationships (separation of powers and accountability); subordination of security forces to civilian control through parliament, and their mandate to protect people’s rights. But now Uhuru has shown little regard for democratic values and practices (civil society feels under siege) or other objectives of the constitution. Instead he has shown great affection for the armed forces. And it is not only cynics who will regard the amendments as laying the foundations of a dictator, militaristic regime.

Before we go too far along that line, it is worth learning from the experiences of other countries which have legislated for terrorism in the expansive way as we are threatened with. Their experience shows that there is tendency of the restrictions on rights or short cuts from the safeguards of the law which are justified as temporary, to infiltrate the normal areas of the law, and weaken safeguards, infecting the laws and administration, the over criminalisation of conduct, becoming part of routine law, thus denuding people of important rights. This is followed by the permanent weakening of legislature and judiciary, while the executive is immunised from legal process. This has led in many countries to the militarisation of the administration which can in turn led to the overthrow of civil control of the state, ushering in direct military rule.

Equally serious is the effect on minorities and their rights. Such legislation is often seen, justifiably, as targeting them. Muslims in Kenya feel that the amendments target them, not without reason. The heads of two major Christian churches welcomed the amendments for this reason, and their other recent remarks have demonstrated their belief that Muslims are responsible for acts of violence. In many countries such legislation has led to rebellion and demands for secession, and thus to increased repression by the state.

It is also the case that though the purpose of such legislation is to end conflict, experience shows that it tend to prolong and intensify it. For reasons mentioned above, the majority gangs up against the targeted community, now presented as source of terrorism, and reasonable politicians and other social leaders marginalised by fiery leaders, exploiting the discontent of the community, find it easy to recruit desperate youth, who, victimised by the state, are willing to destroy property and kill people. This makes the situation even harder to cope with.

If the government is convinced that the MRC want secession and will use any degree of violence to achieve it, they are helping the MRC in its struggle for secession. We will then be in terrorism for the long haul. Fortunately I do not believe that MRC are engaged in violence. But if the Bill becomes law, our future as a nation and economy will be bleak. The failure of Uhuru and his advisers to foresee the many ramifications of the Bill is most disturbing. Parliament must remember its constitutional responsibility to protect the constitution, and kill this invidious Bill.

The author chaired CKRC and Bomas, and is now a director of Katiba Institute.

- See more at: Security Bill wears away the rule of law | The Star
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