A reportedly angry President Uhuru Kenyatta said, “These are acts of nothing less than economic sabotage, which is a treasonable act, and the law is very clear as to how you deal with individuals who commit treasonable acts and plunge the country into chaos for their own selfish needs.”
And “As of today, we have put a moratorium on any scrap material until we have put in place proper guidelines that will ensure that material is not coming from the investment that the Kenyan people have made.”
Making speeches while angry may not be wise.
Remember the “wakora” speech about the judges in 2017, a day after having, in a statesmanlike fashion, said he would of course accept the Supreme Court’s judgment?
The latest angry speech has attracted a good deal of reaction, mostly about the wisdom of closing scrap metal businesses. The risks of driving people to crime because they lose their livelihoods, the concerns about how else to stop rampant theft of metalwork from the SGR, highways and pylons, why it used to be possible to register and regulate this business but apparently no longer. All very valid — and probably the priority issues.
Some other issues do not seem to have attracted nearly so much attention.
DOES HE HAVE POWER TO CLOSE BUSINESSES?
Maybe you have a profession or run a business. If you are, perhaps, a boda boda rider, a butcher, a dentist, or run an NGO, do you imagine you would accept that was quite legitimate for the President suddenly to announce that all businesses or concerns of your type were to be shut down forthwith?
First: generally it is accepted that decisions that affect people should be taken only after consultation with those most affected and often with the public more broadly.
This is because of the Constitution’s emphasis on public participation, and because new laws like the Fair Administrative Action Act actually insist that decisions affecting people negatively should follow information and consultation. Why not if the President does it?
Second: what legal power does he have? This takes us to scrap metal law. And yes, under the Scrap Metal Act (passed in 2015 replacing an earlier Act), “A person shall not deal in scrap metal, unless that person has a licence issued by the [Scrap Metal] Council and is a member of Scrap Metal Dealers Association.” And registered dealers must keep a register of the scrap metal they receive.
This Act could maybe do with some revision, but I do not see that it gives anyone – President or not – the power to stop all scrap metal dealers. Anyway, global actions, not taking account of individual circumstances, are usually improper administrative acts.
Third: a sudden and blanket ban on certain economic activities would probably be held by a court to violate human rights. Even if there is a legal power, both it and the way it is used must not violate rights unless the strict tests of Article 24 of the Constitution are satisfied.
These include that there must be no other way to achieve a valid purpose (such as stopping theft of important public metal objects) that creates less of an impact on rights.
IS ECONOMIC SABOTAGE REALLY TREASON?
My first reaction to this was that the President has been talking to the Chinese too much. Not that the Chinese actually treat economic sabotage as treason perhaps, but as pretty well as serious.
Treason is an offence under our Penal Code. It is phrased in language that has been around for hundreds of years. It includes waging war on Kenya, giving comfort to Kenya’s enemies and instigating an armed invasion of Kenya.
And to compass, imagine, invent, devise or intend the death, wounding, or imprisonment of the President, or deposing the President by unlawful means, or overthrowing the Government. And it is committed only by a person owing allegiance to Kenya (basically being a citizen) — though a non-citizens would be guilty of a slightly lesser offence for doing the same things.
Presumably when the President said, “The law is very clear as to how you deal with individuals who commit treasonable acts,” he was referring to the fact that the death penalty is the only sentence for someone convicted of treason. (The Supreme Court’s decision about the mandatory death penalty does not apply to treason.)
What is the law about stealing things like road barriers?
It is a crime to destroy or damage property to be used in the service of the Government for any service essential to the life of the community. The maximum punishment is life imprisonment if the person intended to endanger life or knew that this was likely to endanger life (which could well be the case for stealing road signs or railway equipment). Otherwise the punishment is up to five years. Certainly roads are essential; railways might be arguable.
This is getting close to the punishment for treason – especially since no-one has been executed since 1987. But it is still not technically treason. And economic sabotage with no risk to life would not attract the same punishment. So the President was wrong.
CAN HE INSTRUCT HOW CRIMINAL LAW IS TO BE USED?
Nothing prevents the President telling the police that they ought to take certain crimes seriously. He can probably direct them to do so. But the Constitution envisages this as a matter for the relevant Cabinet Secretary. However, since the President appoints and may dismiss Cabinet Secretaries and appoints (but should not dismiss) the Inspector General of Police, his realistic powers are probably greater than they look on paper.
What he cannot do is to direct that a particular person be investigated and still less that they be prosecuted. The latter is the responsibility of the Director of Public Prosecutions – realistically, rather more independent than the police.
It seems that no one has been prosecuted for treason since after the attempted coup of 1982. Those cases were of people in the military, prosecuted for trying to overthrow the government.
The word 'treason' does not often appear in the Kenyan press. But it did in another context recently. Following the death of Charles Njonjo, his rather peculiar statement about imagining the death of the President has been resuscitated.
You will see that he did not invent it. To repeat, the Penal Code says treason includes compassing, imagining, inventing, devising or intending the President’s death.
The story goes back to 1976 when people began to wonder what would happen when Jomo Kenyatta died. Prime movers in the conversation were opposed to Daniel arap Moi taking over – according to the Constitution – for a limited time.
Njonjo put a stop to the conversation by saying that “the utterance or declaration of such ‘imaginations, devices or intentions’ was punishable by a mandatory sentence of life imprisonment” (this is taken from the New York Times which reprinted this historic item online much more recently (https://www.nytimes.com/1976/10/11/archives/kenyans-told-not-to-press-changes.html).
The language of imagining the death [of the King] comes from an English Act of 1351. By the 18th century, the courts were clear that merely thinking about the death of the King, even thinking of killing the King, was not enough. It involved planning the death of the King. And planning was not enough (even if one could know what someone was planning). There had to be some act, even if it did not go so far as attempting to cause the death. Plotting with another person would be enough.
So Njonjo was entirely wrong (and probably knew it) – but presumably was using the language of the Penal Code to stop a debate that had got a bit out of hand as far as President Jomo Kenyatta was concerned.
The Constitution was the product of careful thought and drafting. Ordinary law may be less so – or terribly out of date like the Penal Code. But throwing around threats not based in law, or worse acting without legal backing, are unworthy of senior state officials.
