Kenya's future pegged on courage of everyone holding State power

“Orders from above” have just replaced “Forwarded as received” as the three most dangerous words in the English language.

Recent events have left me reflecting on the growing danger for state officers in important constitutional offices and our democracy. 

The application by the Office of Director of Public Prosecutions to defer plea-taking in the case of police commanders and officers implicated in 2017 post-election violence, was a surprise to many.

Probably one of the most significant cases in Kenyan post-colonial history, the inquest and the criminal case has been with the Office of Director of Public Prosecutions from the beginning. 

The twelve senior officers individually face charges that they instructed or failed to stop the use of unnecessary force as well as sexual and gender-based violence during police operations. This is the first time police officers are being charged with the principle of command responsibility in Kenyan courts under the International Crimes Act and Article 25 of the Rome Statute.

Article 25 establishes the principle that state officers can be individually charged and punished with criminal responsibility for human rights violations. The case is not just material for improving Kenyan jurisprudence. It is fundamental for tens of survivors and victim’s families.

It has been seven years since six-month-old Samantha Pendo’s life was ripped from her parents Lencer Achieng and Joseph Abanja and many others, mostly women were sexually violated, physically assaulted and killed. Two years ago, the ODPP’s decision to re-open this case raised their hopes that justice would not be denied and that those who give “orders from above” to harm the innocent would not get away. 

Some 840km away and seven years apart, Bruce “Chawa” John was assaulted, raped severally and left in a dumpsite by people linked to Mombasa Governor Abdulswamad Sharrif Nassir. Addressing the press with his wounds still fresh, this week the blogger courageously told the heartbreaking story of his ordeal and accused his four attackers of acting on behalf of “orders from above”. 

The two cases are set to start in Kenya’s highest courts and public faith in the justice system will be tested again. This test takes place in everyday suits by Kenyans seeking to protect or advance their rights.

Patients who can no longer access health insurance, students whose financial support has been cut, victims of gender-based violence, spouses denied their inheritance and employees unlawfully dismissed. 

The Constitution enshrines the expectations of all Kenyans for a government based on values of human rights, social justice and the rule of law. The principle of equal access under the law requires it to apply in every circumstance and for all, not just some.

If our constitutional and statutory offices fold in the face of those powerful and privileged shadows, the nation will slowly die and eventually perish. If the lines, the powerful now cross without a care to the damage they are doing, the shadows and their accomplices will prematurely ruin many professionals, our constitutional order and our reputation as the rule of law and just nation. 

Senior Counsel and poet Pheroze Nowrejee revisits the principle of fairness in his new book “Practising an Honourable Profession”. Quoting Article 50(2) “every accused person has the right to a fair trial” one of Kenya’s most respected lawyers reminds us that unfairness is gangrene to Project Kenya.

A biased judge, corrupt lawyer or a state officer acting on orders from above blocks our arteries as a nation, jeopardises our national security, strangles our economy and leaves us all vulnerable. The nation depends on the professional conscience and courage of our citizens, state officers, investigators, advocates, prosecutors and judges more than ever before. I dare you all.