Rule-of-law 365: A Kenya tale

The 10th of December has been celebrated around the world since 1950 when the United Nations General Assembly proclaimed that day as the Human Rights Day, to bring to the attention of the peoples of the world the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations. The 1948 Universal Declaration of Human Rights established the body of civil, political, economic, social and cultural rights which today thread together the rights-obligations matrix existing between individuals and the State.

The slogan for this year’s Human Rights Day commemoration is: ‘Human Rights 365’. The message behind this slogan is that every day is human rights day; each one of us, everywhere, at all times, is entitled to the full range of human rights, that human rights belong equally to each of us and bind us together as a global community with the same ideals and values.[1]

I wish to reflect on the theme: Human Rights 365; or rather, if I may paraphrase the slogan, ‘rule of law 365’.

According to the World Justice Project, the concept of the rule of law entails the following four interlinked principles:[2]

• The government and its officials and agents as well as individuals and private entities are accountable under the law;
• The laws are clear, publicised, stable, and just; and they are applied evenly; and protect fundamental rights;
• The process by which the laws are enacted, administered and enforced is accessible, fair and efficient; and
• Justice is delivered in a timely manner by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

There are many reasons why Kenyans must stay focused and even be consumed by the rule-of-law theme. It is still not five years since Kenyans adopted the 2010 Constitution which we all celebrated as the fortress from which we would launch a sustainable human rights State. By that Constitution, we established for ourselves first-class norms and institutions including a robust Bill of Rights and governance institutions that included checks and balances both at the central and devolved levels. Kenyans therefore may be forgiven for wondering that advocates who so recently urged fervently for the adoption of the 2010 Constitution are now contemplating constitutional changes. Our political class, whether in government or in the opposition, want to persuade us that the reason devolution may not be making a difference to rank-and-file citizens, or the reason that Kenyans continually face terrorist outrages, is because of the 2010 Constitution.

In the wake of the two terrorist outrages in Mandera during the last fortnight when 64 Kenyans were murdered, the government is seeking legal changes ostensibly to enable it to combat terrorism more effectively; the impression being that the Constitution has multiple glitches and it is these that encourage insecurity by inhibiting the possibilities of effective responses by law-enforcement agencies. Clearly, Kenyans may not fault genuine government efforts to rout out terrorism from the country. Those who are killed by terrorists are as much human rights victims as are victims of State-sanctioned violence. Yet, unimpeached concerns remain that State responses to terrorism are not always implemented within the strict limits of the law; and that there are instances where the State employs extrajudicial means to combat terrorism. In such instances, the question that begs is, why then change the law if the law in the first instance is not respected?

The message that all Kenyans of goodwill, united despite their diverse creeds or cultures, must send to our government is this: that the continued sustainable existence of this nation is best served if the country remains a rule-of-law State. Kenya will stay a rule-of-law State when all the actions of its institutions abide by Article 24 of the Constitution. Any legal security-sector reforms must be undertaken within clear constitutional perimeters. In particular:

• Any limitation of a right must be established by law.
• Such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. That is why profiling a youth on the mere basis that he is wearing a beard is neither right nor constitutional: it is undignified and amounts to unequal treatment.

In terms of the Constitution, here are some relevant questions Kenyans must keep in mind every time suggestions to limit a right are made:

• Which right is being limited – the right to be free from torture?
• Why is the right being limited – because that individual’s religion or ethnicity makes it likely or probable that she is a terrorist?
• To what extent is the right being limited – is the individual to be killed because a judicial process will not convict her?
• Is enjoyment of the right by an individual prejudicial to the rights and fundamental freedoms of others?
• Are there less restrictive means to achieve the purpose for which the limitation is sought?

The Constitution expressly requires that a limitation is invalid if it does not specifically express the intention to limit that right and the nature and extent of such limitation. Such provision must be clear and specific about the right to be limited and the nature and extent of the limitation. Any limitation must not derogate from the core or essential content of the right.

That is the Constitution. The questions all Kenyans must ask today are manifold:

• Will the country remain a rule-of-law State when the tag ‘suspect’ means you can be interred for a year without any judicial process or supervision?
• Will we be safer by allowing the police to tap our phones without judicial supervision?
• Are we now actually writing death squads into our legislation in the guise of ‘pre-emptive strikes against terror suspects’?
• And, how exactly does limiting the right to picket enhance the fight against terrorism? Or is this also about limiting political organisation?

The African Commission on Human and Peoples’ Rights has restated the general principle that: ‘Governments should avoid restricting rights, and have special care with regard to those rights protected by constitutional or international human rights law. No situation justifies the wholesale violation of human rights. … General restrictions on rights diminish public confidence in the rule of law and are often counter-productive.’[3]

Clearly, legitimate reasons for limitations of fundamental rights and freedoms may exist; but these must be founded on legitimate state interests and they must be strictly proportionate with and absolutely necessary for the advantages that are to be obtained. A limitation may never have the consequence of causing a right to be illusory.[4]

So, what about our civic responsibilities as individuals? The Ameru community have a saying: ‘gutimwamba na mutegeri’ (essentially meaning there is no distinction between a thief and an onlooker). In our instance as civilians, we will be respectful of Kenya as a rule-of-law State when we extend common courtesies to each other and when we exhibit due care for our neighbour.

Then, how about our religions? Each one of us and each one of our religions is as important as the other. John F. Kennedy said that: ‘The rights of every man are diminished when the rights of one man are threatened’. That holds true for all of us in this country despite what our religious leaderships may say or do. Our religious leaderships must offer guidance, not intemperance or retribution. For example one of the matters which the popular media has not addressed sufficiently is the fact that acts of terrorism also do impact negatively many Muslim individuals and families. Many Kenyans would clearly be amazed about the number of Muslim individuals and groups in Mombasa who actually work within their communities to address radicalisation.

Finally, it is significant that the instinct of many Kenyan actors nowadays in the face of the terrorist onslaught and the State’s counter-measures is total avoidance or amnesia, far too often leaving the impression that this particular matter is a Mombasa problem or Northern Kenya problem; that it is a Muslim problem or (for more opportunistic reasons) a political opposition problem. All Kenyans who think the government’s proposed legislative changes target the other person, ethnicity or creed and not themselves may wish to heed the words of Pastor Martin Niemöller:

‘When the Nazis came for the communists, I remained silent; I was not a communist. When they locked up the socialists, I remained silent; I was not a socialist. When they came for the trade unionists, I did not speak out; I was not a trade unionist. When they came for the Jews, I remained silent; I wasn’t a Jew. When they came for me, there was no one left to speak out.’[5]

* Lawrence M. Mute is a human rights and governance consultant.

END NOTES

[1] http://www.un.org/en/events/humanrightsday/ (accessed on 9 December 2014).
[2] http://worldjusticeproject.org/what-rule-law (accessed on 9 December 2014)
[3] Media Rights Agenda and Others v Nigeria, http://www.chr.up.ac.za/index.php/browse-by-subject/407-nigeria-media-rights-agenda-and-others-v-nigeria-2000-ahrlr-200-achpr-1998.html (accessed on 9 December 2014)
[4] Ibid.
[5] http://www.civilfreedoms.org/?page_id=2053 (accessed on 9 December 2014).

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