Why Opposition can only push for justice within Constitution

On October 30, 1969, President Jomo Kenyatta banned the Kenya People’s Union. Kenya became a de facto one party state. After 1969 during Jomo's presidency, no attempt was made to form another political party even though there was no law prohibiting it.

This changed once Daniel arap Moi became the 2nd President of Kenya. A few months into his presidency, murmurs of political dissent started to gain momentum.

One of the methods devised to curb political dissent was the passing of the law that made Kenya a de jure one party state. Kanu was then the ruling party. The law was changed to prohibit the formation of any other political party. To ascend into active politics through elections could only be achieved by first gaining membership of and the blessings of the leadership of the only party. It is this change of the law, and the restriction to ascend into elective positions in Kenya, that fermented the rebellion that led to the 1982 attempted coup.

The 1982 coup attempt was a defining and turning point for both the former President and the country. The events of January and February 2018 have remarkably similar characteristics as the Kenya of 1982 and well into the 1990’s. It is said of the 1982 coup attempt that it was allowed to happen. The presidency, the intelligence community and army generals were aware of the plans by the Air Force and political dissidents to overthrow the government.

Destroy political dissent

It is whispered in the corridors of political history that the State let the attempted coup happen and then used it as a tool to destroy political dissent. Detention without trial, Nyayo House torture chambers, Nyati House, forced disappearances and political assassination were frequently and consistently wielded to silence any political dissent. 

The attempted coup, and the loss of life and property that followed it bred fear among citizens who for a long time did not question the methods used by the government to deal with the plotters of the coup. When the effects of the coup faded from the minds of citizens, new fear was bred using the “Mwakenya” phenomenon. 

Moi remained in power for another 20 plus years after the coup attempt. For a quarter of a century, Kenya was ruled like a police state: through fear and propaganda. The only refuge for those who wanted to enjoy freedom as well as political prosperity was to cozy-up to Kanu and its trusted members.

There are many lessons to be learnt from this period of history. The first and natural reaction is the fear of the return of a rogue State that uses its powers, within and outside the law, to silence political dissent.

However, that is not the most important take away lesson from this period. The most important lesson is the use of the Constitution and the law to gain power. Law reform was the only tool that succeeded in taking power from the hands of Kanu and former President Moi. Every other extra legal method failed.

The Jubilee government is following Kanu’s script. The January 30 'swearing-in' ceremony, like the 1982 coup attempt, was a political snare. Like the 1982 attempted coup, the State allowed the 'swearing-in' of Raila Odinga. Like the extra legal 1982 coup attempt, the extra legal 2018 'swearing-in' has become a pretext to yield and wield State Power. The arrest and deportation of Miguna Miguna, the arrest and charging of MP TJ Kajwang, and the cancellation of the passports of opposition figures are carefully orchestrated to test the waters.

Like the period after the 1982 attempted coup, the only level playing field for the Opposition is within the Constitution and the law. Outside, the bully that is every State in the world will beat them into submission.

The writer is an Advocate of the High Court of Kenya. finclegal@hotmail.com