In the time of war, the law falls silent. That was Cicero. He supported the appointment of Julius Caesar by the Roman Senate as dictator. It ended in tears when Brutus, Julius's most trusted confidant, conspired with other senators to assassinate Caesar on the senate floor. Each of the conspirators stabbed him.
Kenya has not appointed a dictator. Neither the Senate nor the National assembly has abrogated its powers under the Constitution. Uhuru Kenyatta is not a dictator. He swore, on the bible by the by, to uphold the laws of Kenya, the Constitution and the laws of nations in the execution of his duties as President and Commander-in-Chief of the Kenya Defence Forces. Therefore, one seeks to know by what authority his government has rounded up thousands of suspects, concentrated them at the Safaricom Stadium at Kasarani, subjected them to vetting by the National Police Service, the Immigration Department, the Anti-terrorism Police Unit and God knows who else in the name of seeking to protect Kenyans from a war being waged by an unknown enemy.
Many Kenyans have come out in support of the President and his government in the tactics they have used in the past week in attempt to take the war to al Shabaab. Very few have thought to question whether, in a nation with a written constitution, a broad set of written laws and a Parliament that represents their interests, it is fit and proper for due process to be abrogated for the sake of temporary safety. Some of those rounded up have been identified as having committed offences. Some have been identified as being prohibited immigrants under Kenya's immigration laws. But few have been identified as having waged war against Kenya.
There are those who would not argue with the description of Kenya's borders with Ethiopia, South Sudan and Somalia as porous. President Kenyatta is acutely aware of this; in one of his first decisions as President, he directed the Cabinet Secretary for Defence to spend four billion shillings to bolster Kenya's defence. In a recent interview to commemorate one year in office, he declared that the Government of Kenya would do all it takes to keep Kenyans safe. He was broad on rhetoric and short on specifics.
The defence of the realm must be done in the context of the laws of the realm. Presidents cannot make their own laws as they go along except as they are permitted by the Constitution. This dictum has been challenged by the amorphous nature of the enemy Kenya and many nations face in what George W Bush, the forty-third president of the United States called the global war on terror. Kenya has a dark history in the abrogation of the laws of the land; massacres, unlawful detentions, detentions without trial, disappearances and assassinations were the order of the day in the 1960s, '70s and '80s. It all started with the idea that the President could declare a person an enemy of the state and use whatever tools he had at his disposal to dispose of these enemies.
Kenyans pray that the President has a plan and that it has nothing to do with the reincarnation of the imperial president many Kenyans buried with the ratification of the Constitution in 2010. Parliament has proven to be supine; its leadership has done nothing to temper the enthusiastic application of draconian tactics in the war against radicalism in Kenya. The Judiciary is in crisis. Its leadership is in the middle of an internecine war to control the billions allocated to it by the National Assembly. It falls on the people, on whose behalf and for whose interests the President, his coalition and his government govern to temper the inclinations of the President. If the non-elected leaders among us lead the cheer in the violation of the principles enshrined in the Bill of Rights, they will find themselves standing alone when the untrammelled power of the President is directed at them.
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