By WILLIS OKETCH

The High Court has lifted a ban imposed on Mombasa Republican Council (MRC) two years ago.

While lifting the ban, the court declared that no evidence has been adduced to prove MRC’s connection to violent crimes and added the group may agitate its agenda through political and legal means.

The separatists group, however, received a blow when the court ruled that their chants, slogans and “agitation for secession” might constitute hate speech, propaganda for war, incitement to violence or advocacy for hatred, which is “unconstitutional and criminal”.

This suggests that MRC’s slogan Pwani Si Kenya may now be deemed treasonable to the extent that it advocates for break up or incites hatred and violence, which the judges said is illegal.

But MRC secretary general Hamza Randu immediately denounced the ruling declaring that the group will continue to push for secession. He further declared that the “suggestion that we register and operate as a party is unacceptable”.

Randu and two other MRC members Robert Charo and Nyae Ngao sued Attorney General Githu Muigai and Internal Security minister the late George Saitoti on November 24 seeking to overturn gazette notice 12585 of October 18 outlawing the group.

Saitoti cited his powers under Prevention of Organised Crimes Act in declaring the ban that has now been lifted with heavy conditions.

On Wednesday, three judges in Mombasa ruled that the gazette notice that outlawed MRC was unconstitutional because State did not prove MRC is threat to security and national stability. Justices John Mwera, Mary Kasango and Francis Tuiyott ruled that MRC has “all the attributes of a political movement” and will be given the opportunity to “fully enjoy their rights” while registered or organised as a political party.

It was a mixed ruling that elated and dismayed MRC’s opponents and supporters in equal measure.

Whereas the group is now free to seek registration as a political movement, it has been warned that it cannot be allowed to demand secession for the coastal strip or dismember the country or even incite hatred.

The details of the ruling read by Justice Tuiyott render MRC’s core demands impossible to achieve since it said lifting the ban is not “a carte blanche to disorder and lawlessness”.

Last evening, Muigai said he would appeal against the ruling.

 “The Attorney General shall be appealing against the said decision of the court revoking the order of the minister on grounds that the court decision failed to consider the legitimate constitutional concerns of Government in ensuring that any group or organisation challenging the constitutional authority and territorial integrity of the Republic of Kenya cannot enjoy protection from Constitution,” said a statement from senior deputy solicitor Muthoni Kimani.

In their decision, the judges warned that by lifting the ban, the bench had not endorsed secession adding that only the people of Kenya can alter boundaries through a constitutional amendment.

Conscious that lifting of the ban might enrage Kenyans and be misconstrued as an endorsement of secession, the judges broke down their reasoning in a manner that scattered MRC’s core demand of secession.

The ruling declares the Constitution does not envisage a subtraction of its territory but instead entertains the possibility that Kenya can in fact acquire more territory.

Freedom of expression

The judges said Kenya’s geography could only be changed by “Kenyans themselves” through an amendment of the Constitution which “does not contemplate secession”.

The judges said although they agree that Article 5 of Constitution specifies Kenya’s size, Kenyans are free to discuss other issues of sovereignty and self-determination.

But even that, they said such discourse must be done within the parameters of the Constitution, which expressly outlaws a break away of territory unlike Ethiopia’s Constitution that allows regions to secede.

The judges said Kenyans are “shocked and horrified by the secession agenda of the MRC” but suggested that MRC’s opponents should allow freedom of expression as a price of democracy because in a free society “we are expected to put up with some defiance, dissent and controversy.”

They also said if Constitution contemplated the possibility of secession, it would have declared so expressly.