There is no room for coercion in civilised society. The doctrine is, 'The ballot, not the bullet.' This credo informs the Bill of Rights, that is Chapter Four of our Constitution.
We lead ourselves by our natural right to think. Next is the fundamental freedom to decide. We are not enslaved by fiat. Not from any arm-twisting self-styled leviathan. This is regardless that such fiat may be disguised as law. Kenyans will shortly be treated to high drama in the National Assembly, about the majority and minority parties. The United Democratic Movement (UDM) has discarded a pre-election agreement with 25 other parties in Azimio la Umoja One Kenya Alliance.
It has joined President William Ruto's Kenya Kwanza (KK) Alliance. So, too, has a motley of other parties. They have upset Azimio's supposed majority in the assembly. But Azimio's overlords are in denial. They won't let them go.
Accordingly, you will hear, next week, that the registrar of parties admitted a pre-election covenant by Azimio. Among other things, the covenant binds signatories not to leave the alliance, until 60 days after the general election of August 9. Even then, they must give 90 days of notice.
The registrar of political parties should not have admitted this strong-arming, in the first place. For, this is perfect coercion. It defies the 2010 Constitution. Did the registrar mislead herself in admitting an unconstitutional covenant? If two people should enter a contract to do something illegal, should the authorities, as duty bearers, admit such a covenant?
The Azimio contract offends several articles of the Constitution and the law. I will cite just a few. First, is freedom of association (Article 36). 'Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.'
Naturally, this includes freedom to belong to a political formation. Balanced with the freedom to belong, is the freedom not to belong. An individual's freedom not to associate cannot be withheld. It cannot be taken hostage by some self-serving Goliath. Nor can it be handed back only after the lapsing of certain unconstitutional timelines.
In admitting the Azimio coalition agreement, the registrar failed to note that to limit anybody's freedom in the manner attempted by the agreement offends Article 24 (1) of the Constitution on limitation of rights and freedoms. This limitation is unreasonable. It cannot be justified in a democratic society. More apropos are Articles 38 and 32. Article 38 states, 'Every citizen is free to make political choices.' The choices include membership to political parties and allied formations.
Meanwhile, belonging to a political formation cannot make you a prisoner to it. You are not obliged to agree with everything in the formation, and to remain there as if you were serving a jail term.
Article 32, for its part, of the Constitution protects freedom of conscience. If your conscience tells you it is time to leave, nobody can hold you back, saying, 'Wait for 60 days. And even then, you must give 90 days of notice.'
Put differently, your conscience cannot be locked up in a cupboard, to be handed back to you after 90 days. To take anyone hostage Azimio-style is to lock them up into slavery and servitude, contrary to Article 25(b) of the Constitution.
By admitting the Azimio coalition covenant, the registrar of political parties made a fatal mistake. She contravened Article 21(1) of the Constitution, where, 'It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights,' in which these articles are enshrined.
A further mistake has been made by advising Parliament that Azimio coalition is the majority party in the National Assembly. She has reason to know that Azimio is a coalition party, and not a coalition of parties.
This party does not have a single MP. In the end, ORPP is responsible for the confusion. For Azimio's leaders, it is time to swallow the bitter pill. To accept that the election was lost, and to begin their role as the Opposition.
Dr Muluka is a strategic communications advisor. www.barrackmuluka.co.ke
