The oath the President takes on assuming office includes the following: “I will obey, preserve, protect and defend this Constitution of Kenya, as by law established”. He must also promote and enhance the unity of the nation; promote respect for the diversity of the people and communities; and ensure the protection of human rights and the rule of law (Article 131).
In July 2013, I wrote in the Star: "As President Kenyatta ponders over his style of governance, he has to decide whether he wants to rule the people by their consent, in accordance with the constitution, or like his predecessors, through coercion."
Barely three months into his term, it was clear that he was not committed to the constitution. What convinced me that this was so was his plan to dismember the constitutional values and structures of the police. The constitution attempted to make a fundamental break with the colonial and post-colonial policy of using the police not to protect the people but to oppress them.
The reform of the police was also a principal concern of the post-2007 election agreement between political parties, following the terrible atrocities committed by the police. The constitution stipulates that police are to “comply with constitutional standards of human rights and fundamental freedoms”; “prevent corruption and promote and practice transparency and accountability”; “train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity”; and “foster and promote relationships with the broader society” (Article 244).
In order to achieve these objectives, an independent Police Service Commission would be set up to recruit the police, reflecting regional and ethnic diversity,—because in the past the top police officers had come from the President’s tribe. The Commission would also discipline the police. The Constitution gives the police force autonomy in respect of its operations and investigations and sets up an independent police commission to ensure competence, independence and neutrality of the police.
Within weeks of coming into power, Uhuru set about demolishing this system, returning to the old system where the President could instruct the head of police, be involved in police recruitment, and control the exercise of police powers, among other retrogressive steps, embodied in two Bills. Although it was obvious that the Bills were unconstitutional, the President ignored many requests to withhold his assent.
In recent months Uhuru has also made extensive use of the military, in domestic matters, which is constitutionally prohibited, except for exceptional case with the approval of the legislature. The constitution does not envisage such wide scale use of the military as the President has ordered. Nor the wide impunity security forces enjoy now, as they had under previous regimes. He has appointed senior military officers to high civilian jobs. Along with police officers they have become his advisers and confidants. And like the police, they enjoy wide impunity. And when you see posters of members of security forces kicking their legs shoulder high, you begin to wonder whether we have a militarist regime in the offing.
The government has got the people mesmerised by security issues. Raids against innocent people and communities have become commonplace (especially since the terrible slaughter of Westgate, which Uhuru refuses to investigate despite his promise.). No one knows who are behind the raids; some think it may be the government; the government generally blames al Shabaab or MRC—except when it wants to blame a local community, for political reasons. Security forces are no longer accountable for their wanton acts; their powers have increased, including shooting to kill on mere suspicion.
The last few weeks the media and the public have discussed little else. Religious groups have come out strongly against “terrorists”; as have many other groups. Much of the public discussion is about how to fight insecurity and how to strengthen security forces. People no longer talk of the increasing poverty to which more and more Kenyans are becoming victims. They no longer talk of the utter ineptitude of this government. They say little about the cronies of this government and the huge largesse they receive from the government. All too readily, they accept huge violations of the constitution as necessity. Few discuss why and how we have reached this situation or whether government’s economic and ethnic policies might have fuelled disaffection and protests. And we have suspended our concern with abuse of power.
All this plays to the policy of the government, taking attention away from other pressing issues, like expensive projects contracted out without proper procurement procedures and of very doubtful economic value and other breaches of the constitution. It is obvious that the “public relations” people advising the President have achieved a remarkable “coup”. Let us hope that John Githongo’s recent brave and powerful statement on the militarisation of the government will give us cause to reflect on our present predicament.
Kenyans who voted overwhelmingly for the constitution seem to be forgetting the vision they fostered and it offers. Rejecting the path of state violence, the constitution offers an alternative mode of governance: peaceful, a nation united by common values and singular loyalty to the country, inclusion of all groups in our governing bodies and public services, fairness, justice, equity, eradication of poverty, integrity in public and private life, and the rule of law—all of which are anathema to the government. The president pays lip service to these values, especially when he talks to foreign audiences; his talk to Kenyans is about how terrorists will be crushed.
The author was the chair of the CKRC and the Kenya National Constitutional Conference.