When we ratified the new Constitution on August 4, 2010, we collectively buried the old one and everything it represented. In its place, we entrenched and enshrined our rights and fundamental freedoms as the cornerstone of the newly acquired democratic dispensation, a dispensation based on and undergirded by the principles of constitutionalism, the rule of law, respect for human rights and equality.
In the new dispensation, nobody is above the law. Not the president. Not the Prime Minister. Not any public servant or institution. Everybody is equal before and under the law. Supremacy vests in the Constitution; not on any particular individual, group of persons or institutions.
Public institutions and those vested with authority to manage them (ought to) do so for the benefit of the people and under the ambit of the Constitution. Constitutionally, political power, personal wealth, knowledge or station in society doesn’t place one person above another one. Every opinion counts – and must be seen to count - equally. Public responsibility isn’t a license for selfish aggrandisement. And because the Constitution vests sovereignty on the people, ultimate power and authority also vests with them as well.
A free and democratic society must be government by the people themselves. But because of the nature of the modern state, the people do this through their freely and democratically elected representatives. In other words, the people, through their elected representatives, make laws, establish institutions and govern themselves. That’s why the phrase the ‘government for the people, by the people and with the people’ was coined and became infectious. The people’s representatives are mere custodians or trustees. They only exercise the mandate the people have donated to them temporarily. They must do so in accordance with the Constitution. That’s a positive duty.
Essentially, all decisions made by the representatives of the people cannot be done without the consent of the people. And the people’s consent must be obtained after thorough and genuine consultations. In a democracy, such consultations must be done transparently. Any decision made by the executive, the legislature and the judiciary that openly violates the Constitution is ipso facto void. Such decisions must be ignored by the people.
However, if the violations persist, the people are obligated to oppose them, by all available legal means. This is a far cry from September 13th, 1984 when former president Daniel arap Moi had the audacity to issue this command: “I call on all of you...to sing like parrots in issues I have mentioned...If I put a full stop, you should put a full stop. This is how this country will move forward.” [sic]
That iron-fisted dictatorship ground Kenya to a halt in all spheres. That’s what we intended to change by the enactment of the new Constitution. Anybody who wants to return Kenya to that backwardness must be exposed, fought and defeated. Now, war is defined as “a state of armed conflict carried on between nations, states or parties; a condition of active contention or antagonism.” Article 132(4)(e) of the Constitution of Kenya, 2010 vests the power to declare war on the president with parliament’s approval.
Parliamentary approval is mandatory. It’s a condition precedent. This is to ensure that the people retain final control over war, like with other major issues. A country should not go to war, expose itself to external attacks, and dedicate vast resources to war unless it is truly in the interest of its people. A country cannot take our men and women in uniform to war and place them in extreme danger without our consent.
It cannot be in the public interest for a government to spend billions of shillings we, as a people, don’t have, didn’t authorise and never budgeted for. Sun Tzu cautions in The Art of War: “do not attack what cannot be overcome.” Ironically, the assistant minister for provincial administration and internal security, Orwa Ojodeh, made a remarkable statement in parliament last week. He said: “we are fighting a large snake with its head lodged deep inside Eastleigh estate in the City of Nairobi while its tail is in Somalia.”
So, what are our soldiers doing inside Somalia if the head of that snake is right here with us? When trying to kill a poisonous snake, do you first go for the tail or you strike the head? Why are we chasing the tail if we know where the head is?
Admittedly, Kenya was provoked. The ‘massive’ and unprecedented military incursion in Somalia followed audacious abductions of three Europeans inside our territory. Sadly, one of the hostages has died. It’s unclear who is responsible for these abductions. No group has claimed responsibility. The al-Shabaab has pointedly denied involvement. Nobody has provided any credible evidence contradicting those denials.
Tragically, two Kenya navy officers who were pursuing the abductors of the French lady from Lamu drowned under mysterious circumstances. The abductors got away. About ten other soldiers have perished since the military operation began. Again, nobody has candidly explained how the terrorists – whoever they are – managed to breach our borders and entered deep inside our territory without detection. Similarly, nobody has explained why our security forces failed to apprehend or kill the invaders before they escaped.
Moreover, was this massive incursion planned over-night? If not, are the “reasons” being advanced by the government credible? Sun Tzu, the master military strategist and tactician asserts: “The superior militarist foils enemies’ plots; next best is to ruin their alliances; next after that is to attack their armed forces; worst is to besiege their cities.”
So, our military is clearly in the last category; isn’t it? All we have done is besiege Somali cities. We don’t know the true identity of the ‘enemy’. We don’t know its size. We don’t know its capacity. We don’t know its locations. It’s equally unclear how long the mission will last or how much it will cost. Clearly, we can’t defeat something we don’t know; can we?
We never budgeted for this war. Why was the war necessary when hundreds of Kenyans have been slaughtered by foreign militia and security agents in Migingo, Ugingo and Northern parts of the country without any response? Are we executing a war because those abducted are European or we are doing it because of tourism?
By no means am I implying that we should do nothing under attack. No. What am challenging is the manner, timing and reasons given for the ‘war.’ Even under attack, we must learn to do things legally and constitutionally. Under those circumstances, why are some people arguing that we cannot exercise our freedom of conscience, thought, opinion, belief, expression and press? Where in the Constitution does it provide that public servants waive these rights by virtue of their employment? Kenyans fought for, suffered and died to attain these rights. We shall never waive them.
Mr. Miguna is an advocate of the High Court of Kenya. He is also a barrister & Solicitor in Ontario, Canada.
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