Friday, September 30, 2016

Braggadocio is not public policy

One of Nairobi's budding pundits declares without a hint of irony that the unlawful re-entry of a inadmissible person in Kenya, especially because the person's deportation was on the "personal instructions" of the president, is treasonous. Of course he doesn't mean that the prohibited person was being treasonous but the Kenyans, especially Kenyan immigration officials, who may have helped the prohibited person to re-enter Kenya are being treasonous.

The description of the offence of treason according to section 40 of the Penal Code, has tow principal elements, one that directly relates to the security, safety and office of the President and the other, the security and safety of Kenya. Section 40(1) states,
Any person who, owing allegiance to the Republic, in Kenya or elsewhere—
(a) compasses, imagines, invents, devises or intends—
(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or
(ii) the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and
(b) expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed,
is guilty of the offence of treason.
The penalty for penalty, for those coming late to class, is death. The last persons judicially executed in Kenya we the last conspirators in the 1982 coup attempt against the government of Daniel Moi. No one has been executed in Kenya since 1987. Over the past five years, the calls for capital punishment for what have hitherto been non-capital offences have only increased, with the sophisticated among us who are well-travelled and well-exposed to new ideas being at the forefront of these calls. 

What should give us pause is that these sophisticates base their calls for capital punishment on the model provided by the People's Republic of China, which is not known for its fidelity to human rights conventions, the rule of law or the reasonableness of its constitutional order when it comes to individual rights and freedoms.

The aforementioned pundit equates the circumstances surrounding the re-entry of a prohibited person in Kenya with treason because such re-entry is done in the face of the President's "personal instructions." For sure, the President is the head of state and government, and until the judiciary arrives at what that means, we shall continue to presume that the President has the power and the authority to direct the members of his Cabinet to execute his orders, including on the deportation of alleged drugs dealers from Kenya and the prevention of the inadmissible person from re-entering into Kenya. The re-entry of that person is likely because of the corrupt acts of one or more public officers, especially officers charged with the administration of Kenya's ports of entry and border control points, such as Namanga and Malaba. Corrupt acts are not treasonous acts.

Section 40(2) of the Penal Code states,
(2) Any person who, owing allegiance to the Republic—
(a) levies war in Kenya against the Republic; or
(b) is adherent to the enemies of the Republic, or gives them aid or comfort, in Kenya or elsewhere; or
(c) instigates whether in Kenya or elsewhere any person to invade Kenya with an armed force,
is guilty of the offence of treason.
Words have meaning and it is important when someone opines on matters of war or peace, life and death, that they have a very clear idea of what they intend by what they say. Drugs' smuggling is yet to be declared to be an act of war because, other than for the notorious Gen Manuel Noriega of Panama, few heads of state or government align themselves so openly with drugs' smuggling. However, many nations, including Malaysia, Thailand, Indonesia and China, take the threat of drugs' smuggling seriously enough that it is a capital offence to traffic in drugs. Kenya does not and therefore, drugs' smuggling or trafficking is not a capital offence. It certainly doesn't fit within the description of "treason" given by the Penal Code as it doesn't threaten the President in any way nor is its seen as an act of war against Kenya.

Part of the reason why we are incapable of having nuanced discussions about the place of the government and government officials in our life is because political office in Kenya is a zero-sum game in which one man's electoral victory is another man's destruction. Another is that we tend to equate the State and the Government with the head of state ergo, a threat against the president is a threat against the State. It is why it is so easy to suggest that immigration offences are the equivalent of treasonous acts against the president. It is how braggadocio is converted into public policy.

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