Every Kenyan has a right to associate and assemble freely. Citizens also have a right to speech and expression. These are some of the rights enshrined in the new constitution. However, the enjoyment of such rights is not exercised in a vacuum. It comes with some responsibility. Those enjoying such rights must not be allowed to trample upon other citizen’s rights to live freely without fear in their own country.
Nobody disputes the constitutionality of any Kenyan of sound mind running for public office. Participating in free and fair elections is a right. Contesting the results of a political competition is a constitutional right too.
However, contrary to the belief of some, being declared winner in a free and fair election is not one of those rights enshrined in the constitution regardless of what you think is the right thing. It is a privilege that can only be accorded a candidate by other citizens who are convinced that he or she has what it takes to lead them.
Electoral bodies cannot win an election for a candidate. A handful of justices sitting in a court of law cannot “elect” a leader for the masses. Coercion, violence or threats of violence cannot guarantee a win in a country that is governed by laws. Not even the international community, its financial and other muscle notwithstanding, can impose leaders on a sovereign nation against the wishes of its people. The power to elect a leader lies squarely in the hands of citizens who vote on election day and not any other day.
Institutions of governance exist in old and new democracies. Respecting the authority of constitutional bodies such as those charged with the responsibility of executing elections is the ultimate responsibility of those seeking leadership.
More importantly those running for positions such as president have an even greater responsibility because a President’s main job is to ensure national security and integrity.
Losing in a national election should not therefore result in omnibus missions that could easily shred the fabric of a nation. Politicians who make reckless statements and shoot before they aim have no business running for village elder, leave alone national leadership.
Kenya is a country governed by laws. Chapter 6, (3c) of the constitution states that every political party shall promote and uphold national unity. This is not optional. Politicians and political parties that choose not to adhere to this requirement must clearly understand that elections have consequences and failure to respect the law in the name exercising their constitutional rights may forever ruin the country they so wish to lead.
The best part of Kenya’s new constitution is the bill of rights (chapter four) which largely dwells on inalienable entitlements. Such rights include freedom of assembly and association as well as freedom of speech and expression. These are the hallmarks of democracy and a free society.
In Kenya, politicians deliberately choose to distort the provisions of the constitution. Some have repeatedly applied selective amnesia which grants them an opportunity to cherry pick the clauses of the bill of rights that promote their selfish interests.
Article 33(1) of the constitution of Kenya states: Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and(c) academic freedom and freedom of scientific research. Some politicians have made it a habit to quote this part of the constitution whenever they are reminded that their utterances may constitute a breach of the law. They strategically avoid the subsequent subsection that places limitations on the enjoyment of freedom of speech and expression.
Article 33(2) of the constitution of Kenya expressly states: The right to freedom of expression does not extend to—(a) propaganda for war;(b) incitement to violence;(c) hate speech; or (d) advocacy of hatred that—(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27 (4). Further in article 33 (3) the constitution concludes as follows: In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. This cannot be overemphasized.
When politicians choose to subject their country to permanent campaign mode just because they have a constitutional right to “express” themselves, such a country is exposed to predictable vulnerabilities of dysfunction.
The economy of such a country is subjected to unreasonable dormancy, its court system exposed to ridicule, its global peace rating downgrades and its investment environment becomes risky.
Kenya’s politicians and institutions of justice must choose between promoting national security and cohesion and upholding the “rights” of individuals who erroneously believe that there is no democracy unless they win.
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