In Reasons why he country's security is in a shambles, and what to do about it (Daily Nation, 25/06/14), Mwenda Njoka repeats the serikali line: the courts have been enfeebled by the Bill of Rights that places paramount importance on the people, and not enough teeth or flexibility to the courts to keep, for example, terror suspects in police custody by denying them bail. He goes on to argue that institutions have been emasculated because the National Intelligence Service, the National Police Service and the Provincial Administration have taken to acting autonomously and not in concert.
These are certainly reasonable justifications for why it is increasingly difficult for the Government of Kenya to secure the safety of the public for extended periods. But they are inherently flawed. Let us take the courts' granting of bail to one and all without a care in the world. The right to bail is found in Article 49(1)(h). It is not an absolute right; bond or bail can be denied. All the police have to do is to persuade the court that they have compelling reasons not to release an arrested person on bond or bail. It is not the courts' fault that the police are unable to persuade a magistrate that an arrested person should not be released; it is the police who are to blame.
This leads to the second major flaw in Mr Njoka's argument: while the pre-Constitutional security environment witnessed the seamless machinery of the Special Branch, Kenya Police Force and Provincial Administration working in concert to deliver on security, even Mr Njoka will have to admit that the "security" that his seamless machinery delivered had little to do with public safety and more to do with the perpetuation of a man and his regime in power. We did not throw out the baby with the bathwater when we jettisoned the former constitution; we simply replaced an iniquitous system with one that the security establishment, especially the police, has resisted conforming to.
The principal responsibility of a government is the safety of its people; the principal occupation of every Kenyan government from the colonial era to date is its self-preservation at all costs. Mr Njoka is not a fool. He has witnessed the lengths to which the Government of Kenya will go to protect itself from its people. Therefore, when he suggests that it is time to seriously reconsider the overhaul of the Bill of Rights in order to "give the courts more teeth and flexibility" and to recreate the seamless machinery of the Special Branch-Kenya Police-Provincial Administration triumvirate era, deep down he knows we will reject his proposal.
It is time Mr Njoka and his bosses at Harambee House arrived at the same conclusion everyone and their cat has. We are not demanding the resignations of the Cabinet Secretary, the Principal Secretary, the Inspector-General of Police or the Director of National Intelligence because we have personalised the safety of the people by blaming these four for their failures which have led to the deaths of hundreds of Kenyans.
We demand these resignations because because these men, bar maybe the Director-General, have resisted the diktats of the Constitution. They are determined to look at the Government of Kenya as the only entity that is in need of security. They have not demonstrated an ounce of sympathy for the families of the hundreds of dead Kenyans; their response - their only response - has been that they have done their best. Their best has not been good or good enough. We cannot elide the truth any longer; it is not the Constitution or the constitutional reforms that have failed us, but men who have refused to change with the changing times. If Mr Njoka cannot see this, then perhaps it is time he too resigned.
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