Newly-enacted security laws are an affront to democracy

The rushed Security Laws (Amendment) Bill 2014, fronted by Jubilee government has finally been signed into law. It generated enough furore, attracted anxiety and tension within the country.

It came as a response to absurd twin attacks in Mandera a couple of weeks ago alongside other series of raids elsewhere.

It’s firstly important to note that Al-Shabaab and extremists do not attack our country because of lacuna in our laws. I am sure they do not even know what our Constitution proscribes. Tightening the laws will not scare them, but only swift and timely execution of security policies, intelligence gathering and cogent responses.

Kenya decisively passed a progressive Constitution in August 2010. Because of the gigantic leap it portended for Kenya’s democracy, and the big promise it bore, as well as the joy that radiated on every face, regardless of the fact that some had opposed the new law, we universally and succinctly called this day the birth of the Second Republic.

There were, however, calls on Kenyans to bear in mind that the hardest part had just started, which would be entrenchment of the tablet of laws and creation of new ones to ensure full implementation. It is therefore tragic that the raft of amendments clothed as security laws are perceived by most Kenyans to be driven by ill motives. The President’s speech immediately after signing them into law merely perpetuated this perception, and sadly sucked these laws into great disrepute.

I dare say had it not been for the new Constitution that guarantees fundamental rights, we might now be having a completely autocratic and brutal regime; suppressing dissent, clamping down on the media, detaining political opponents, maiming and killing those viewed as threats to its survival. With the new laws, Kenya is likely to be a police state and security apparatus will definitely be prying on people’s privacy. However, the infringement of fundamental rights and freedoms; and taking action against dictatorship and autocracy; are both ancient and fundamental. Their entrenchment and guarantee in the people’s charter is intended only as a formality and a reminder.

These fundamental rights and freedoms don’t have to be enshrined in any written document. A constitution doesn’t have to be written; England has no written constitution, yet these fundamental rights and freedoms are engraved in the English culture, values, society, democracy and daily practice, as they are supposed to be in all democracies around the world. That is why the Bill of Rights is considered by many to be the crown jewel of our new Constitution. For without it, all the other governance structures, institutions, legislations and values would be meaningless.

One can legitimately argue that without the fundamental rights and freedoms contained in the Bill of Rights, the sovereignty of the people would be a hollow promise.

The laws, such as the ones rushed by the Jubilee administration, should not be pliable in the hands of the Executive to be used as appendages and tools of the presidency. Any law or act that conflicts the Constitution must be declared unconstitutional by the Kenya’s Supreme Court. Why else would leaders who claim to subscribe to the ethos of the constitution turn around and impose a raft of amendments in the security laws that injure human rights, and hide behind the tyranny of numbers in its passage in Parliament?

Now, all we suspect is that the amended laws have a specific mandate, which some Jubilee legislators themselves might not even know.

Of profound interest is the law governing the functions of the media, purporting to inject discipline among media houses and their journalists, and the inhumane punishment to be meted on violators. Just like lawyers have the Law Society of Kenya, the media equally have self regulators like Media Council of Kenya, Media Owners Association, Kenya Editors Guild, Kenya Union of Journalists and others. These are legally recognised entities that can sue and be sued. The media does not need any further media law as their operations have consistently been above board.

They have relayed the right information to the audience with decorum and journalistic etiquette.

If the draconian laws are clothed in security concerns let the Jubilee government effectively train, arm, fund and command a military force to oppose the flagrant abuse of the Kenyan people by armed militia from Somalia. Now the first agenda of civil society, any Kenyan citizen or the opposition is to move to court to challenge its legitimacy. Because it conflicts the tenets of the stone tablets of our laws, the High Court will have to declare it unconstitutional. Therefore the brouhaha, comedy, abracadabra and ping pong games we were treated to will surely be a nullity.

Will it be worth the energies?