In the face of great tragedy at the Westgate Mall in Nairobi, the people of Kenya have shown strength and resilience. Now, faced with national mourning and loss, Kenyans have the opportunity to further human rights around the globe by demanding the government follow the democratically constructed constitution.
In the interest of preserving the integrity of the Constitution, the suspected Westgate terrorist’s Constitutional rights must be upheld—even in the wake of this awful tragedy.
Though the exact identities of the suspected Westgate Mall assailants remain unknown, interrogations are well underway. With mounting pressure from the Kenyan people for justice and the international community for information, as well as the looming threat by al-Shabaab, time is a critical factor.
Government officials seeking information have two paths before them. On the one hand, they could recognize the terrorists’ Constitutional rights and question the individuals within the parameters of the rule of law.
On the other hand, they could ignore these fundamental rights and employ any technique necessary, including torture, to extract information.
Kenya has the opportunity to take the unpopular but principled stand of honoring the rights of the Westgate suspects. A failure to protect human rights here supports extremist claims of unfair treatment and may result in cyclical reprisals.
In 2010, Kenya adopted a new Constitution affording those within its borders many important protections. Constitutional rights do not however, exist in a vacuum.
In Kenya, as is the case in many countries, the crossroad between emergency conditions and necessity can occasionally demand that Constitutional rights be temporarily constrained.
But drafters of the Kenyan Constitution adopted principles found in international human rights law, and made an explicit division between those rights which may be suspended in times of extremism and those fundamental rights which may not. Among these non-derogable rights enjoyed by all people within the Kenyan borders, is the Constitutional right to be free from torture.
In 2012, the Kenyan government took an unfortunate and unlawful step backwards and moved to restrict these non-derogable rights. The 2012 Prevention of Terrorism Act allows for “the limitation of the freedom of security of a person to the extent of allowing investigations under this Act.”
The language of this legislation allows the right to be free from torture to give way to investigative necessity. This is in strict violation of the Constitution.
One hopes that those currently engaged in interrogating the Westgate suspects recognize that the Constitution takes precedent over legislation such as this.
The issue facing Kenya now, however, is a practical one: if Kenya condones suspending basic, Constitutionally guaranteed human rights, even in an attempt to save lives, commitment to the Constitution will be fundamentally weakened.
This will propel a nation already struggling with corruption down a path where anyone may be in danger of being tortured for any reason in the future.
This is Kenya’s chance to lead. The Kenyan people, through a robust democratic process, have established a system of laws anchored in one of the most modern Constitutions in the world. In the face of extremism and senseless violence, Kenya has the opportunity to hold itself to the standards of their own Constitution and rule of law –a standard the US, in the face of the post 9/11 World Trade Towers attack failed to uphold. This choice may prove to be a watershed moment for Kenya, forecasting the future viability of their newly enacted Constitution.
The assailants on the Westgate Mall have shown that any coward can inflict harm on another. To that end President Uhuru Kenyatta has made it clear, “Terrorism in and of itself, is the philosophy of cowards.”
Kenyans’ commitment to supporting each other and rebuilding their community demonstrates a strength and resilience that those in power must match. The way forward for Kenya is upholding the Constitution and refraining from acts of torture in the coming days.
Earl Sullivan consulted for the Kenyan Section of the International Commission of Jurists and student of law at Seattle University School of Law.