Kenyans are dying. What does the Constitution say?
Freedom Corner in Uhuru Park memorializes the struggles of Kenyans for freedom, including during the 1950s.
The Mau Mau memorial, paid for by the British government, recalls the period when that government subjected its citizens to torture for daring to demand justice and freedom. (Yes – fellow citizens because all colonial subjects were British until maybe especially African independence prompted the start of whittling away of the principle in 1962.)
Opposite is Nyayo House, in the basement of which the henchmen of President Daniel Moi tortured their fellow citizens in the 1980s for daring to express opinions unfavourable to him and demanding more freedom.
More or less between these is the Nairobi Gallery – the old PC’s office – which houses much of the Murumbi art collection, and puts on occasional exhibitions. Now it has one the main feature of which is accounts of people who voted in the 2007 election and were appalled by the violence that followed. Some vowed not to vote again. Some have moved. All say that such violence is intolerable, and must not be allowed to recur, let alone be encouraged, in 2022.
Since all these events the 2010 Constitution has been adopted – indeed the events of 2007-08 gave a major push to the constitution making process.
Article 26 says, “Every person has the right to life.” Some people think this is about abortion. But I want to link it to Article 29 that says, “Every person has the right to freedom and security of the person, which includes the right not to be ….subjected to any form of violence from either public or private sources, subjected to torture in any manner ….”.
It reflects, I think, the basic reason why people consent to be governed by others. As another columnist recently commented, one of those 17th century philosophers who wrote to justify the existence of the state, Thomas Hobbes, imagined a state of nature before people came together under a government. In that state, he said, there was “continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”
People as they moved beyond small family groups to larger communities surely hoped they would be safer and more cooperative with the other members of the group and if they had disputes with another group that they would also be safer.
Maybe Hobbes’ perspective on human beings was unduly cynical, and many would, even if somewhat sympathetic, reject his conclusion that what is needed is an all-powerful government.
Hobbes’ book was called “Leviathan”. Makau Mutua called his book about the making of the 2010 Constitution, “Kenya’s Quest for Democracy, Taming Leviathan”.
Articles 26 and 29 reflect why people need to be part of an organised society. But they are also part of the move to tame possible excesses in that society particularly by the body that has the most power – government.
But the articles go further than just requiring the government not to use unjustified force, or torture. First, the rights in the constitution, which mostly belong to everyone in the country, are not just rights we have against the government but that we have against each other. And in a number of cases people have been able to sue others for breach of rights under the Constitution, and even obtain compensation. Politicians, even if not in government, should remember this.
Second, the Constitution goes much further than saying to government, “You must not kill or maim or torture”. It says that it is “the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms” (Article 21).
The duty to protect means that government must do what is reasonable to protect people against violence from others. Providing a police force is part of this.
The duty to promote the right involves educating, alerting, encouraging and incentivising people to respect the rights. And the duty to fulfil rights means taking even more positive steps when necessary. It may be that in the context of preventing violence the concepts of protecting and promoting cover most of the possible state actions
APPLYING LAW TO KENYA’S REALITIES
Kenyans may die during the election period. Indeed some signs of violence are already there.
But Kenyans are already dying and suffering from violence, if not from elections, from community unrest such as in Baringo and Elgeyo Marakwet. The government keeps instructing that something should be done but the response of the security services is poor.
People are dying from hunger in some parts of the country. Here the right to life can be linked to the right to food.
The Constitution does not require the impossible. It may be that all that it requires is for government to take reasonable steps to protect, promote and fulfil these rights. But ignoring the issues, making empty promises and meaningless pronouncements cannot be enough.
I am not so much concerned about legal redress and remedies. They will always only benefit a minority of those affected by major events like these.
What most concerns me is the weakness of recognition on the part of government and politicians – including those vying for office – that this is in any way their responsibility.
The Constitution is not simply a set of rules for how politicians get into office. That used to be what constitutions were about. But more modern constitutions, especially ours, are about the use to which the power that comes from being elected is put.
The Constitution makes it clear that being elected (or in some other way installed in high office) is not all about being able to rule (or worse to reign). It is about serving the people “the responsibility to serve the people, rather than the power to rule them” (Article 73).
Other parts of the Constitution supply more information about the objectives and the methods, though not dictating the details because that is a matter for choice and judgment at the time, taking into account public participation, democratic practices and evidence. I think of provisions like that which says public money must be prudently spent (Article 202(d)) and above all the Bill of Rights.
To the government of the day, and to all those politicians strutting around the country portraying themselves as national saviours, what are you doing to save the lives, the security and the hopes of Kenyans? What will you do, once elected? What is our understanding of why Kenyans are dying or being hounded from their homes by violence in Baringo? Or dying of hunger in Turkana? “Bandits” or “drought” are not good enough answers.
Kenyans need to know how you are protecting or will protect those people. How will you offer education, incentives, encouragement to those who are guilty to stop? How will you stop people dying? And if you are in office why have you not done enough so far?
FAILURES TO FOLLOW CONSTITUTION
A violation of the Constitution is a serious matter. A violation of the Constitution (sometimes a “gross” violation and sometimes a “serious” one) is a ground for removing various people from office, including the president.
It is time that government and politicians took seriously this most basic of obligations – to protect and promote the right to life and right to be free from violence. If you cannot keep your people safe, what are you doing in government?
In 2011, Kenya invaded Somalia – because of the kidnapping of a few foreigners. What are we doing when far larger numbers of Kenyans are being attacked and their animals killed? Similar questions can be asked about those dying of hunger, even if not from physical violence.
This is not simply a matter of morality, or political will or vision. It is a matter of failure to obey the Constitution – now the founding document of Kenyan society, that is supposed to make us truly one Kenyan nation.
This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2022-03-06-ghai-kenyans-are-dying-what-does-the-constitution-say/