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February 18, 2019

Cop-out ‘law’?

Police spokesman Charles Owino.Photo/File
Police spokesman Charles Owino.Photo/File

The reverence of the President by Owino and others is a greater threat to democracy than terror


In Wednesday’s Star, police spokesman Charles Owino is quoted as saying that Cord politicians might be arrested if they persist in anti-IEBC demos: “Only the President is above the law since his office is protected. The others are not spared”. This unnecessary statement is most troubling. It suggests that the police, driven by vindictiveness, are determined to “punish” the Cord principals, regardless of the constitution, which gives everyone the right to freedom of expression as well as the right to assemble, demonstrate, picket and present petitions to public authorities (including the IEBC).

Owino is equally mistaken when he says the President is above the law “since his office is protected”. His statement about the office being protected is meaningless. But it leads to a situation when the police think that their highest loyalty is to the President, not the people. Even if his office were “protected” it does not give the President any authority to disregard or break the law. If Owino had taken the trouble to read the constitution he would have found that all state power belongs to the people, not the President. The constitution is supreme law and binds “all persons”. He will also have fund that one of the highest national values is the rule of law, binding even the President. The constitution makes clear that “executive authority derives from the people and shall be exercised in accordance with this constitution”. It also requires of the President that he or she “respect, uphold and safeguard” the constitution. Nor is the President free from sanctions. He can be removed on grounds of incapacity, impeached for gross misconduct, and for gross violation of the constitution or law. And, although the President cannot be prosecuted, domestically, for any crime, while in office, this only postpones the possibility of prosecution “during the President’s tenure of office”.

Owino’s understanding of the immunity of the President is no doubt influenced by his admiration of the British colonial style of rule, including overwhelming powers of the governor (and perhaps inspired by statements of previous AGs like Charles Njonjo and Amos Wako’s that the “President is above the law”). Equally his threat to Cord leaders is inspired by colonial police treatment of freedom fighters, disregarding that the constitution makes a complete break with colonial oppression of the people and the constitutional mission of the police to protect the people. Police practices and to some extent legislative amendments diluting the independence of the police service show that the government and some sections of the police prefer to continue with colonial values and principles of administration. The sycophantic reverence of the President by Owino and many others in authority is a greater threat to our democracy and human rights than “terrorism”.

I do not want to make too much of Owino’s unfortunate statement and threats. There are undoubtedly police officers who are committed to the new values of the constitution. Fortunately Inspector General Joseph Boinett has said more than once that the police authorities would examine the practices of the police and punish those who disregard the new constitution. The President must give the IG full support as he goes about establishing new police values, mission and practices. The President himself must also observe the constitution and the law — something he has not always done. His disobedience of the constitution no doubt encourages others in authority to disregard the law, in his and their own interests.

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