How committed are we?

An arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested; or if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. [Art. 49(1)(f)]

Together with Article 50(2)(a) on the presumption of innocence of accused persons, these are the principles that we demand for friend, foe and all people in-between. Hon. Babu Owino, MP, is an odious species of Kenyan and it has been the wish of thousands of Kenyans to see the back of him from public office and if it took a conviction for his casual recklessness with his licensed firearm, that would just be fine. But his recent arrest and detention, presumably, by members of the National Police Service, the concealment of his place of detention, and the failure to arraign him before a magistrate within twenty-four hours are the reason why the Bill of Rights, particularly Articles 49 and 50, exist.

The vast majority of Kenyans have no need to rely on the protections of Article 49 or 50; but whenever those protections are undermined, regardless of the reason, all Kenyans are endangered. Mr. Owino's arrest and detention, it is speculated, are connected to his central role in mobilising disaffected constituents of Embakasi East Constituency to demonstrate against the elected government of Dr. William Ruto and Right Gachagua over the cost of living crisis. Jacaranda Grounds falls within Embakasi East Constituency and it is presumed that the Kenyans who are motivated to attend incendiary political rallies at that venue do so due, in part, to the efforts of Mr. Owino and any violent clashes with policemen can be attributed, in part, to the role Mr. Owino plays in bringing them to the venue in the first place. This is, obviously, rubbish thinking but in Kenya rubbish thinking seems to be all that we are left with.

What is important to remember is that Kenyans have a long history of police abuses, especially the detention and disappearing of arrested Kenyans, sometimes permanently, during which may of the detained were tortured, permanently maimed or murdered. Mwai Kibaki's government was no respecter of the rights of arrested and accused persons. It wasn't as violently oppressive as the Jomo Kenyatta or Daniel Moi governments, but it was repressive just the same. Uhuru Kenyatta's presidency did not end with a clean bill. It appears that the full implementation of Article 49 and 50 has a long way to go under the present regime.

Kenyans are called to test their fealty to the protections afforded to arrested and accused persons and this call is connected to the treatments of one of the most recklessly disruptive and destructive politicians to be elected to the 13th Parliament. Mr. Owino was accused of grievously wounding another man using his licensed firearm. Mr. Owino, it is reported, has undertaken several schemes to undermine his prosecution and to interfere with the witnesses to his alleged offence. He is not a sympathetic victim of police excesses. And yet, if we can discriminate between sympathetic victims of police violence and non-sympathetic ones, then we might as well do away with Article 27 which expressly prohibits discrimination on any grounds.

Campaigning for the protection of Mr. Owino's rights and fundamental freedoms is not synonymous with asking that the charges he faces for his other crimes be set aside or he be released from his obligation to face justice. But merely because Mr. Owino is "known to the police" should not be an excuse to use him as the tabula rasa of the Bill of Rights, to be erased and rewritten at will by the forces of unlawfulness and disorder. Benjamin Franklin thought “that it is better a hundred guilty persons should escape than one innocent person should suffer.” If we truly wish to acculturate ourselves to the principles espoused in the Fourth Schedule, then we must hold the National Police Service, and the masters it appears to serve, to account for the arrest, detention and disappearance of Mr. Owino for if we don't, eventually, we will all be at the mercy of policemen exercising powers for no reason other than they felt like it. We cannot afford to rebuild the criminal presidencies of the four presidents that came before the incumbent.

Who will light the fire?

There are a few members of our parliament who behave as if they are the first persons to come up with hate-filled legislation. They walk and talk with the certainty of men (they are almost always men) who have cracked the anti-people code. Of course, if you spoke to them, they would come across as reasonable. That what they are doing is for the public good. That they are addressing a lacuna (they love Latin expressions) in the law. That, because of the lack of moral and legislative support from their parliamentary colleagues, they are taking upon themselves the onerous and righteous task of dealing with an issue of great social necessity because if they don't, kenya will slide Ito anarchy and the children will be consigned to a life of despondency.

They are, for want of a better turn of phrase, dangerous narcissistic idiots.

Kenya's constitutional and legislative framework is remarkably broad. There isn't a subject that isn't addressed under the Laws of kenya. Even the emergent issues that are beloved of diverse constituencies, from cryptocurrency anarchists to electric car zealots, are covered by the existing legislative framework. It only takes an expansive interpretation of the existing law to see that there is very, very little outside its ambit.

The same is particularly true of the criminal law of Kenya. When it comes to sex, sexual activity, sexual offences and, yes, sexual identity, the law is broad, comprehensive, retrogressive and extremely punitive. The proposed Family Protection Bill is the dangerous, hate-filled, narcissistic legislative expression of the deepest and darkest desires of one man. It is a complete repudiation of the Penal Code, Children Act, Sexual offences Act, Criminal Procedure Code and the Bill of Rights. It purports to address a gap in the law that does not exist. It is a man's fantasy of what a legislative theocracy would look like.

That man will, if he has the support of his parliamentary colleagues, open the door for the total undermining of the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. The modern road to fascism begins with the demonisation of people who do not conform to heterosexual norms. The language of Victorian England, which prevails in Kenya's criminal laws, is used to identify and target these people and if that assault is not halted by legislatures or courts, it is expanded to target political (aka "seditionists") and economic (aka poor people) communities.

Since the promulgation of the "new" constitution in 2010, the State, through diverse agents such as parliamentarians, has attempted to water down or roll back the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. Bad laws have been enacted that have been struck down by the courts. Existing bad laws, the ones that preceded the promulgation (such as mandatory death sentences) have been struck down by the courts. This has led to a persistent onslaught against the independence of judges and magistrates in order to shape the character of the courts and influence, if not direct, the judgment that courts hand down. The Family protection Bill is part of a broader effort to render the Bill of Rights nugatory.

One mistake we made in 2003 was to assume that the end of the Moi presidency meant that the work of fighting for constitutional rights and fundamental freedoms was over. Mwai Kibaki initiated the process of co-opting the human rights civil society organisations that has culminated in erstwhile civil society human rights champions participating in the negation of human rights. When you take a step back and look at the big picture, you will admit that the view is terrifying. The rebels in the ministries of faith who said the things that we were afraid to say out loud are no longer there. The political rebels who fought, inside and outside jails, in Kenya or in exile, have become the lawmakers out to burn the constitution to ashes. The civil society organisations that derived their legitimacy from grassroots movements are now tools of foreign governments and agents. It will take a root and branch reform of the civil society movement to shake the political establishment from its single-minded onslaught on the constitution.

Sadly, because of the bread-and-butter issues young people face, the ongoing foreign-inspired boy-child versus girl-child discourse, the resilient poverty among Kenyans aged 25 to 35, and the non-existence of political institutions of whatever kind, there are no civil society champions to lead the fight against the likes of the promoters of the Family Protection Bill. Kenya's rebellion streak ended in 2010. Someone needs to light the tinder that will bring back the fire of the Saba Saba days.

Roe v. Wade, in Kenya

The Constitution of Kenya is a hodgepodge of constitutional principles and styles from across the word: South Africa, India and the United States of America. As a result, though it is lauded as one of the "most progressive constituents in the word", it lacks a certain coherence. Even reading the Preamble, one is struck by the fact that it is incapable of articulating a uniting philosophy. It does not have the We-Are-The-First sensibility of the US's preamble; nor does it ring with the fervour of self-determination in the Preamble to the Constitution of India; nor even the declaration of self-determination in the Constitution of South Africa. The Constitution of Kenya is proof that constitution-writing-by-committee doesn't always work.

What the makers of the Constitution of Kenya borrowed from the United States of America isn't even found in the US Constitution: the securitisation of the public service and the culture wars between the broadly progressive left and hard-line white-supremacist right. Of the most destructive elements of US constitutionalism that Kenya has adopted, are the White Supremacist Christian values such as the definition of family and the black-and-white fight over the right to life. In respect of the right to life, Kenya has adopted the language of live-begins-at-conception favoured by the White Supremacist Christian right wing of US politics. Article 26(4) states that "abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law".

The US constitution does not expressly mention the right to life or abortion. The Indian constitution protects life but does not mention abortion. South African declares that everyone has the right to life and the right to healthcare, including reproductive healthcare (which has been interpreted by many to include the right to abortion). Kenya is the only one that goes into some detail regarding abortion, in addition to the right to health care under Article 43(1)(a). Kenya's abortion constitutional provisions are a reflection of the religious and cultural wars among US political actors, and the recent annulment of the US Supreme Court decision in Roe v. Wade, decided in 1973, will further entrench the US cultural wars in Kenya's constitutional evolution.

It is moot that the Government of Kenya relies a great deal on development partners to finance public health services. Among those development partners who help finance health services in Kenya is the federal government of the United States. The funds provided by the US government are provided in accordance with laws passed by the US Congress, including a law known as the Hyde Amendment which bars the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. President Joe Biden eliminated the Hyde Amendment in the 2021 US federal government budget, but the recent Supreme Court decision on Roe v. Wade will surely complicate matters as the Republican Party, which is wholly opposed to abortion, is on the legislative ascendancy and Joe Biden's legislative plans are unlikely to survive the coming losses the Democratic Party will experience n the November 2022 mid-term elections.

Though Kenya is not directly impacted by the decision to overturn Roe v. Wade, the effects of that judgment will certainly affect the US federal government (including its financial assistance to overseas partners), and consequently, Kenya must be prepared to weather the cultural war that is surely to follow. But because we seem not to have developed a constitutional language, philosophy or principle regarding individual liberty, it is likely that the debate that will ensue will be just as incoherent as the preamble to our constitution. Ministries of faith (mainly Christian) that are affiliated with like-minded US (mainly Christian) ministries of faith will lead the debate. Government officials will try to square the round peg of US federal government rules in Kenyans' square peg of reproductive health care needs.

I encountered a band of teenage girls, they didn't appear older than sixteen or seventeen, who were discussing "kutoa mimba ya miezi tatu". At first glance, they wouldn't appear as if they knew anything about anything. But taking a moment to reflect, it is clear that the proportion of mostly-young Kenyans facing difficult reproductive healthcare questions is growing. More and more young people are engaging in unprotected sexual relations, the majority of which is experimental, though a growing number is coercive. Many girls are getting pregnant and are faced with extremely limited reproductive healthcare choices, whether due to legal restrictions, or cultural and religious ones. It is reckless to ignore this growing cohort of young people on the basis of religious, cultural and political decisions made in a country so far away like the US.

Kenya's constitutional debates are obsessively about the organisation of the Government rather than the Bill of Rights and the realisation of the principles enshrined in the Bill of Rights. We worry about the sharing of political power among the same cadre of men to the almost total exclusion of the advancement of the rights of the individual to make choices regarding her or his liberty, life and body. As a result, we are led by the nose by an extremist and vocal religious minority in support of racialist white supremacist principles that have proven to be destructive throughout mankind's history.

Badi & Co. and the Bill of Rights

Paternalism does not sit well with Bills of Rights.

Nairobi's City Fathers, from the city's founding, have treated the "native" population with a paternalism that has invited rights' violating behaviour of such cruelty that it almost always comes as shock when one sees it in action. The City Fathers, and the central government that backs their anti-people plays, have always segregated the city - the wealthier suburbs and the Eastlands wasteland of untidiness in need of a firm guiding fatherly hand by Those Who Know Better.

This attitude, unsurprisingly, pervades city planning. It is the guiding light of the newly-minted roadsweeping company otherwise known as Nairobi Metropolitan Services, which has theoretically taken on the onerous task of physical planning, public health, public sanitation and public transport. Its 100-day anniversary was marked by the presidential flagging off of water bowsers and off-road ambulances. The president has "inspected" cabro works in the Nairobi Central Business District, giving the general in command top marks for his efforts. The general has attracted a positive press from the usual boosters - professional types that do not want to encounter mikokoteni, nduthists, matatus or hawkers in the streets of their beloved CBD. In their minds, it is a matter of time before martial discipline sorts out the city's issues and it can take its rightful place among the great cities of the world: London, New York, Paris, Munich, Milan and Singapore.

General Badi & Co., in keeping with the expectations of their boosters, have announced that, just like Rwanda's Kigali, one day in each month will be dedicated to mandatory roadsweeping by those in the city.  General Badi announced, portentously, that "this will come into law; it will be a must" to the ponderous praise of those who want government to be their daddy. A few things, though, escape their attention. Or, as I read it, they have completely ignored what is plain to see.

First, regardless of the legitimacy of the deed of transfer, General Badi was not elected to his position; he was appointed to it. He is accountable to his appointing authority. If he messes up, he can't be removed by the voters of the city. It is up to his appointing authority to decide whether or not he is doing a bang up job. So far, his appointing authority is happy with cabro works and branded water bowsers.

Second, a corollary to the first point. He is only accountable to his appointing authority for how he spends taxpayers' money. He need not present a budget for his operations to anyone other than his appointing authority. He is not subject to legislative oversight by the County Assembly. He does not have to lay his budget or his plans before the County Assembly. If he is summoned to attend before the relevant county assembly committees responsible for oversight of the areas under his charge, he can flip the committees the bird and suffer no adverse consequences. He can spend the billions under his charge without further reference to the county government.

Third, the opacity of the General's operations is a recipe for great corruption and if one argues that the Kenya Defence Forces is as white as the driven snow when it comes to graft, one has simply not been paying attention. The Air Force itself, where the general hails from, has yet to satisfactorily explain its dodgy purchase of jet fighters from Jordan that have never seen the great blue yonder. And now the man and his cohort are entering into public works contracts under unknown terms for unknown sums. If a billion or two evaporate into the ether, no one would know.

Fourth, the general is not trained to manage municipalities. Planning air war campaigns and implementing plans to revivify public health services are alike as chalk and cheese. The tendrils of industrial action emanating from the county's health workers will soon enough choke his grand plans for "21 new hospitals" simply because he does not seem to know what he wants to do to improve public health services.

The face of paternalism in Kenya has always been that of autocracy. Kenyans who don't see the light are to be beaten into submission. In Nairobi, the beating has always been meted out by the City Askaris. In order for General Badi to ensure that the residents of this city "turn out in large numbers" to sweep the roads, he will either have to persuade them that it is a good thing or he will have to force them to comply with his "it will be a must" way of thinking. If the latter, he will need to turn out the City Askaris, rungus and shields, to crack heads. Either way, that bit of the Bill of Rights about slavery, servitude and forced labour, is about to meet the General's new cohort. I will leave the irony of an Air Force general commanding City Askaris for others to muse about.