The limitation of Art 32

It takes a clever man to subvert the law while scrupulously observing the letter of the Constitution. When Reinhard Heydrich convened the conference in the dead of winter at a villa in Wannsee in 1942, with the aim of ensuring the co-operation of administrative leaders of various government departments in the implementation of the final solution to the Jewish question, whereby most of the Jews of German-occupied Europe would be deported to Poland and murdered, the conference dwelled in the minutiae of the Nuremberg Laws, enacted to purge the German population of Jews. In the twisted minds of the Nazi high command, the Final Solution was executed in accordance with the laws of the Third Reich.

This is the blueprint for subverting the law of the land without straying from the letter of the Constitution. It is a blueprint that the neo-conservatives of the United States employed in the devastating aftermath of 9/11, ramming through the USA-PATRIOT Act, and relying on a dubiously worded congressional Authority to Use Military Force to not only invade Afghanistan and Iraq, but to wage unrelenting war in the skies over Yemen and Pakistan using the menacing-sounding Reapers and Predators. Kenyans are not so subtle. The art of the deft touch escapes many of them.

It is why when it comes to the pet peeves of the Government, pet peeves that happen to be rights and fundamental freedoms, the Government and its boosters have proven not-so-curiously leaden-footed. On the propaganda front, it is amusing how the Government has been outmaneuvered and and outflanked by some of the most hideous political players, like the Reverend Julius Nyerere who, according to The Star,

He said he personally coordinated Jubillee and President Uhuru Kenyatta’s campaigns in Mwingi to help them win the 2013 general election, and "If MPs and MCAs will not defend the Church, then they should know that in 2017, the Church will take action" 

which led to quiet murmurs that the proposed regulations by the Communications Authority and the Attorney-General will, after all, not be published. I don't think there is anything as humiliating as to be forced to climb down from a pet project by a group that includes the likes of Rev Nyerere and his Kitui County Bishops, Apostles and Pastors’ forum. The signs of this leaden-footedness could be seen from the fiasco that was the Security Laws (Amendments) Bill, 2014, where constitutional concerns were jettisoned on the ridiculous altar of the Tyranny of Numbers. The Nazis were legitimately elected to power; that didn't prevent the victorious allies from prosecuting and hanging senior Nazis after the War.

Kenya does not have the liberal constitution that you think it does. The Bill of Rights is 31 Articles long, but the only Article that matters is Article 24 on the limitation of rights and fundamental freedoms. It states, in part,

A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom...

The only rights or fundamental freedoms that cannot be limited are Privacy; Freedom of association; Assembly, demonstration, picketing and petition; Labour relations; Economic and social rights; and Rights of arrested persons. In case you were not paying attention, the freedom of conscience, religion, belief and opinion can be limited, and the proposed regulations by the Communications Authority and the Attorney-General need not assume such dark overtones as those of the Third Reich because the Constitution already provides for the limitation of the freedom of conscience, religion, belief and opinion. 

Rev Nyerere and his fellow-travellers would be best advised to find a way to amend the Constitution to protect their precious Article 32. So long as the limitation is reasonable and justifiable in an open and democratic society and it is based on human dignity, equality and freedom, it will pass constitutional and judicial muster!