Thursday, December 02, 2010

The Bill of Rights and 2012

Chapter Four, the Bill of Rights, is the foundation of the Constitutional order and its protection is the duty of all Kenyans, including the State, its agents, agencies, departments and officers. In Article 19(3)(a), the Constitution provides that the Rights and Fundamental Freedoms "belong to each individual and are not granted by the State." Article 20 begins "The Bill of Rights applies to all law and binds all state organs and all persons." in sub-article (4) it states that "In interpreting the Bill of Rights, a court, tribunal or other authority shall promote - (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purpose and objects of the Bill of Rights."

When Kenyans were unconstitutionally 'renditioned' to Uganda to face charges of terrorism, murder and attempted murder, only the Kenya Human Rights Commission did anything about it, going to court and obtaining a judgment that found that the Kenya Government had acted outside the law, and that the Commissioner of Police was responsible for the fate that befell the accused persons. Nothing was done. Nothing is being done. Kenyans are still facing charges in Ugandan jails and their government has all but abandoned them.

It is time someone brought charges against the Government of Kenya, demanding that the Prime Minister, who does not enjoy immunity from prosecution, face criminal charges related to the abuse of the Constitution, specifically Articles 19, 20, 21, 27, 28, 29, 31, 36, 39, 48, 49, 50, and 51. The Prime Minister has, on numerous occasions, declared he has the authority to co-ordinate and supervise the execution of the functions of the the government, including those of ministries. This is the law and it was enshrined in the former Constitution to give it maximum effect. In his"co-ordination and supervision", the Prime Minister, therefore, must have been informed of the plans that were executed to transport Kenyans, against whom no criminal charges had been preferred in this country, to a hostile foreign country on the basis of accusations and information provided by that foreign country without the benefit of the protections accorded to those Kenyans by the Constitution, a Constitution that received the spirited endorsement of the Prime Minister himself. 

In the period since these Kenyans were illegally extradited, the Prime Minister has done nothing to reverse the actions of the Minister of State for Internal Security and Provincial Administration, nor those of the Minister for Foreign Affairs or the Attorney-General. As a result, Kenyans innocent of any crime on Kenyan soil continue to face a hostile criminal justice system in a foreign country without their government coming to their aid or instituting legal proceedings to secure their release and transport back to their mother country.

The Prime Minister must be calculating that there will be minimal political fall-out from his gross dereliction of duty. So must the President, who, because of the immunity he enjoys while still in office, will escape the sanction of all right thinking Kenyans for the part he has played in this sorry affair. This is a pattern that is repeating itself in the interpretation and implementation of our Constitution. The Prime Minister heads the largest faction in parliament, but his authority over the MPs of the Orange Democratic Movement is tenuous at best. He has his eye so firmly on the 2012 presidential elections, where he hopes to emerge victorious, that he has taken his eyes off the importance of the rule of law.

The National Assembly too, has abdicated its duty to be the defender of the fundamental rights of Kenyans. The Members of Parliament, especially those who are the representatives of the Kenyans extradited to Uganda, have done nothing to secure their release, being preoccupied with the insignificant question of boundaries and memberships of constitutional Commissions. The national assembly has not censured the government or any of the members of the Executive branch for the gross violation of human and political rights of the Kenyans involved. All hope to be returned to their secure sinecures in the august House without too much trouble.

Many have lamented the fact that the Government of the United States of America has not ratified the Rome Statute that established the International Criminal Court. The reason is that many American lawmakers were afraid that their citizens would be subjected to hostile and partisan legal processes in a tribunal that they did not have control over. This is a matter over the International Criminal Court. While the US has many extradition treaties with many nations, it presumes that its legal framework is robust enough to deal with criminal matters, even if they be trans-national. The Government of Kenya, has not even bothered to ensure that its legal processes are reformed to be able to legally extradite Kenyans accused of offenses in other countries.

Until those Kenyans are returned to their homeland, or in the alternative, until all legal processes are applied to prove that they deserved extradition in the first place, no Kenyan MP should be allowed to stand for re-election in 2012. None should be allowed to hold high office. None should be allowed, in short, to have the power to determine matters of freedom. We have been betrayed by the President, the Prime Minister, and indeed, by the Government of Kenya. If they cannot observe, respect, protect, promote or fulfill the rights and freedoms in the Bill of Rights, what is to stop them from completely ignoring all the other Chapters in the Constitution? Their good will? Give me a break!

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