Too many liberties making the country more insecure

By Moses Kuria

This past week we have lost more than 100 lives to illicit brews. My sincere condolences to families of the deceased. I am of the view that these are 100 lives we could have spared. Sixty-seven lives were lost through the terrorist attack at the Westgate mall. Manufacturers of the “Countryman” lethal poison outdid the Al Shabaab by 30-percentage points. The very impressive Mombasa County Commissioner Nelson Marwa has been on record issuing a “Shoot-to-Kill” order against terrorists. I fully concur with him. If we are to shoot on sight terrorists who killed 67 people in one terrorist attack, what should we do to brewers whose drinks have killed more than 100 people?

I don’t expect a love letter from the so-called civil society activists for saying this. This is the root cause of our problems. We have allowed all sorts of charlatans and quislings to endanger the foundations of this nation in the misguided quest for absolute personal freedoms. We have allowed the rights of the person supersede the rights of the public. Civil liberties should always exist in deference to the greater public good.

When the Committee of Experts passed over the draft Constitution to the Attorney General for publishing, there was hue and cry when either the AG or the Government Printer or both inserted words to limit the Bill of Rights for a person who is a danger to national security. With wisdom of hindsight, I think that then Attorney General Amos Shitswila Wako was right. If we had allowed Wako — now the ODM Senator for Busia County — to sneak in this minor change, perhaps we could have saved lives that have since been lost through crime, terrorism, reckless driving, poaching and illicit brews.

But of course civil society high priests would hear none of that. When you allow pinnacles of vice to pass for paragons of virtue, then you get into really big problems. As they say in other quarters, maximum respect Senator Amos Wako. We should have listened to you then. Now we know better.

I challenge you now to reintroduce that amendment in Parliament — whether National Assembly or Senate — and I shall work with you 24 hours a day to ensure we get this through as our First Amendment.

What is the import of not allowing Wako get away with the minor amendment? Police officers are going to court to bar their bosses from transferring them from weighbridges, the dream posting for any corrupt officer. Bingo! The Judiciary grants them orders.

Diplomatic staff are going to court to block the Ministry of Foreign Affairs from recalling them. They secure the orders. Suspected terrorists are released on bail. They demonstrate unqualified gratitude to the Judiciary in style and fashion by blowing up buses in Mwembe Tayari.

Jermaine Grant’s partner in terror was released by our Judiciary only for him to slaughter a policeman in London. The killers of six elephants in Tsavo National Park had been released by our Judiciary on bail.

The major risk facing the Judiciary is that Kenyans might lose faith in it. Before the current Judiciary came to be, Kenyans had suffered from corruption in the previous judicial regimes. Even when we read about corruption through a recent report by the Auditor General, this is more on institutional level at the Judicial Service Commission and the Office of the Registrar-General. There is empirical evidence that unlike in the past, there is very little if any corruption among judges and magistrates. However, this progressive development will count for nothing if the Judiciary continues to threaten the security architecture of this country through judicial activism, liberal rulings and insensitivity to the public right to security. It is more perilous to the integrity and moral standing of the Judiciary than corruption from the Judiciary of yore.

The Judiciary will argue two things in mitigation. They will say that corruption in our police, immigration and other arms of our security apparatus is the problem. They will also say that they base their rulings on existing laws.

When Parliament resumes we should dedicate the whole session to amending the Constitution to remove the ambiguities and loopholes being exploited by criminals and terrorists.

However, the Judiciary cannot be exempted from the cardinal responsibility of placing the public interest over personal liberties. No criminal should be entitled to the mischief of exploiting constitutional and legal lacunae to commit crime.

The Judiciary should be guided by the Constitution, laws and facts, but above all common sense and patriotism.

There is no geographical area in Kenya reserved for the Judiciary, Legislature, Executive, media, lawyers etc. This Kenya belongs to all of us and we all have an obligation to safeguard it jealously.