What are the liberties that Kenyans stand to lose if the anti-terrorism legal framework is revised? Rights of arrested person? Movement? Association? Assembly? Speech? Privacy? Nationality? No one seems to be sure what rights or freedoms Kenyans will lose should the Executive or Parliament have their way regarding the legal framework that is supposed to work when protecting us from acts of terror.
What many of the no-changes-needed brigade refuse to admit is that Kenya is not the United States of America. Kenya, as an idea, was not born of the revolutionary or pioneering spirit. Kenya was born as a colonial idea; its political, legal and social history as a country, and as a nation, is as a consequence of the over six decades of colonial domination by Great Britain. When one examines the history of the United States, one sees that the Plymouth Rock pioneers left England because they were searching for religious freedom. The American War of Independence was fought for political freedom from England. And the American Civil War was fought to determine whether the United States would survive as a Union or whether State rights would prevail in all but a narrow set of circumstances.
Therefore, before we begin to examine the question of what rights and freedoms will be limited in a new anti-terrorism legal environment, we must determine what kind of nation Kenya is and how it came about. Because Kenya is not a nation born or shaped by revolutions fought over specific freedoms or rights, the manner in which those rights and freedoms are enjoyed, or limited, matters in the context of the Kenya government's war on terror. Thus civil society's demand that, for example, the Government of Kenya must not limit Kenyans' right to privacy must be debate din the context of whether this right existed in the first place before the promulgation of the Constitution in 2010.
This blogger supports, broadly, the right of Kenyans to be secure in their persons and property from unreasonable searches or seizures by the agents of the government. This right must necessarily protect Kenyans from the government agents who would go on a fishing expedition ostensibly in search of those who would seek to do us harm. It extends from Kenyans' bedrooms to their doctors' offices to their relationships with family members and spiritual advisors and their financial dealings. However, this right is not licence; in specific instances, Kenyans' right to privacy must be abridged, especially if that abridgment is in the broad interest of the public, such as their safety and security.
The catch, as always, is an effective method of policing those who would ask for the right to be limited. In the dark days of the Kenyatta and Nyayo Eras, all manner of private matters were criminalised. What one thought, in one egregious example, was criminalised when the Attorney-General declared that anyone contemplating the death of the President committed treason and could be triad as a capital offender. It is in oversight of the Executive that Kenya has always fallen short, and the institution charged with the oversight of the operations of the Executive has always betrayed the trust reposed in it by million of voters.
For this reason Parliament has been ineffective. It was hoped that even in a united government, that is, one in which the Executive and the Majority Party came from the same political party or coalition, Parliament would play a stringer oversight role under the Constitution promulgated in 2010. The behaviour of the Majority Party in the first six months of the Eleventh Parliament has put paid to that hope. The Majority Party has frequently behaved like a flower girl at a swanky wedding, cheering on every scheme proposed by the Executive as opposed to carefully interrogating them. Instead of focusing attention on the Executive, Parliament has trained its sights variously on the Judiciary, the independent offices and constitutional commissions, and the devolved government. As a result, even after a harrowing event as the Westgate Mall siege, Parliament has been unable to come up with a credible programme to review the event, to draw the proper lessons from it, and to guide the Executive on the correct path.
Civil society, which used to be the conscience of the nation and the primary instigator of broad reforms in the government, has failed to take up the challenge. In the wake of civil society's success at bringing about a peaceful transition from quasi-dictatorship to quasi-democracy in 2002/03, it was first co-opted into the government and, second, corrupted after tasting the fruits of unbridled power. The successors to the victors of the Second Liberation Movement have drawn the wrong lessons from the nadir of the civil society between 2003 and 2007 and as a consequence has been co-opted by interested parties whose end game is not necessarily the expansion of the freedoms or rights of Kenyans, but that of the business and financial opportunities of foreign powers and their companies.
If Kenyans are to properly debate the place of the national security establishment in the protection of the security and safety of Kenyans, they must do so knowing that they no longer have friends who are willing to advise them on the best way forward. Therefore, we must ask ourselves again whether the proposals being promoted by all the other stakeholders are proposals designed to promote peace, security and safety of Kenyans for Kenyans to make and keep their wealth or whether they are designed to make it easier for foreign powers, transnational corporations and other outsiders to exploit Kenya's rich reserves of resources for their benefit and their profit.
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