- Clearly, the state’s constitutional responsibility is to ensure that Raila and his fellow Kenyans' rights are upheld, protected, and respected.
- That means that the police have to give protection to the demonstrators “peaceably and unarmed” like the citizens to mak
Article 37 of the Constitution gives Raila the “right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”.
This right is decreed for “every person” meaning all Kenyans have that right.
Those who accompany Raila in exercising his rights also enjoy similar rights.
Clearly, the state’s constitutional responsibility is to ensure that Raila and his fellow Kenyans' rights are upheld, protected, and respected.
That means that the police have to give protection to the demonstrators “peaceably and unarmed” like the citizens to make the demonstrators enjoy their human rights under the Constitution.
Indeed, the police are obligated to make sure that those Kenyans who may be opposed to the demonstrations are not allowed to subvert the rights of the demonstrators.
The police are there to keep the peace.
The only right the police are entitled to be given is the route of the demonstration or where it will take place.
Their insistence on giving permission to demonstrate is a clear illusion from their colonial and postcolonial past.
They have not read the 2010 Constitution or even sought legal advice.
The police have become a machinery of violence that the state and the various political leaderships in power, use to deny Kenyans their rights.
History records a grim history of police brutality against citizens, maiming, killing, teargassing them, and using water canons, and rungus as weapons of torture.
Watching them in action gives one the impression that these are robots, not human beings who have families and loved ones.
Their brutality is the epitome of inhumanity, a very sad reflection of the state and the ruling classes. Shailja Patel has described on Twitter what happened yesterday: “At a time of record drought, in a city of perennial water scarcity, the Kenyan state makes war on its citizens with water cannons.”
Overthrowing the Government
This serious issue has been made as clear as mud.
Some people have talked of treason thus inciting the state to deny people their rights.
The Constitution is clear on this issue. Article 1 decrees that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”.
“The people may exercise their sovereign power either directly or through democratically elected representatives.”
Article 3 of the Constitution decrees that “Every person has an obligation to respect, uphold and defend this Constitution” and more significantly “any attempt to establish a government otherwise than in compliance with this Constitution is unlawful”.
It is clear to me that Kenyans can withdraw their sovereign power from any government “in compliance with” the 2010 Constitution.
Kenyans can petition courts, for example, to declare any government illegitimate and illegal under the Constitution.
If the court concedes to the petition then nobody can argue the Constitution was not complied with.
The various governments since the promulgation of the 2010 Constitution have disobeyed court orders with impunity and the arrogance of power.
They have been lucky that none of the Kenyans has had the guts to go to court and seek orders that disobeying court orders is subverting, and indeed, overthrowing the Constitution which is unlawful.
This constitutional route is yet to be taken.
If it is ever taken the courts will have to give orders that comply with the Constitution in terms of regime change.
And this cannot ever be called either a judicial or civilian coup.
It is simply one of the great sites of struggle against dictatorships under the 2010 transformative and progressive Constitution.
Raila must respect the constitutional routes he has taken.
He has participated in an election. The institutions that are tasked with the legality of the Presidential election that he has invoked have respectively ruled against him.
I believe strongly that he is constitutionally and legally estopped from repeating this constitutional route as the basis of subverting the constitutional decisions by the IEBC and the Supreme Court.
He is clearly disobeying the constitutional orders of the Supreme Court that declared Ruto president. He cannot ask Ruto to vacate the State House. I have defined his rights very clearly.
Ruling Elite and Us Kenyans
The intra-elite struggles that we are witnessing are actually a clever political strategy to occupy the political space to the exclusion of others who have different visions for this country.
It is sad that given the great opportunity to mobilize and organize Kenyans no alternative political leadership is in sight.
What great political opportunities exist to get Kenyans to discuss and organize around what they constantly talk about corruption, sovereign debt, subversion of court orders, police brutality, ethnicity, lack of political parties that are institutions, democratic secular state and society, poverty, landlessness, foreign domination, oppression, and exploitation, robust participation of the people in all matters of society, lack of political will to implement the Constitution, and its promise for democracy and a new society in Kenya.
The categories of issues discussed are not closed.
Above all, the economic, social, cultural, spiritual, and political reality is that neither AZIMIO nor KENYA KWANZA (and one can go back to other coalitions, namely, CORD, NASA, JUBILEE) can bring the change we yearn for and have struggled with for.
I have never doubted the genius of our political elite in mobilizing and organizing Kenyans under the politics of division and completely shunning the politics of issues.
When they deal with politics of issues that bedevil the country from the perceptive of populism, ethnicization, and monetization.
We now know what the hue and cry about dynasties and hustlers were all about.
Those Kenyans who cannot see this clearly do not want to see it. Their eyes are closed by politics of division.
What Must be Done? The Political Wheat.
I yet again make my call for the convening of a Sovereign Peoples’ Convention by all of us who believe that what Kenya faces is a crisis of political leadership.
And that crisis can only be resolved by making the first step in a journey that gives us the development of an alternative political leadership that calls for the rejection of the current ruling elite housed in the Government and the Opposition.
The fifth liberation struggle is long overdue.
Clearly, none of the factions in the ruling elite in Kenya can direct and oversee such a liberation.
It is we Kenyans who have always brought about progress to this country through our resistance.
Let this struggle continue. Let us celebrate SABA SABA 2023 by convening the Convention. This is the political wheat!
Willy Mutunga is former Chief Justice & President of the Supreme Court, 2011-2016