The story is told of an evil spirit that went out of a person. The evil spirit travelled over dry country looking for rest but it couldn’t find any. It said to itself “I will go back to my house”. When it went back it found the house clean and tidy. It went out and brought seven other evil spirits stronger than itself to come and live with it. The person ended up in a worse state than he was at the beginning.
August 27, 2010 marked a fresh beginning for Kenyans. The dawn of a new Constitution exorcised the ghosts of Kenya’s past.
Post-election violence was the final bullet in the trigger of Kenya’s constitutional reform. This traumatic period warned us of the fragility of a nation whose leadership and citizenry identify more with their tribes than the State.
Kenyans gave themselves more power. By securing human rights and freedoms; and, elevating them above national security. The President had become far too powerful. Some powers needed to be taken away, the remainder diluted.
The Constitution and the new laws would put right our past wrongs. Cleanse and reform of our institutions. Renew the spirit of nationhood, once forgotten. With one instrument, as one nation, we drove away the many lurking evil spirits of and before post-election violence.
The process of drafting, debate and enactment of the Security (Amendments) Law threatens to bring back the divisions of 2007/2008. The opposing hard-line positions that have been taken and the theatrics within the National Assembly will trickle down to ordinary citizens. People who have no access and do not understand the new law will rely on the interpretation of their favourite politicians and political parties.
Are parts of the law defective? Yes. The law in one of its provision gives power to the National Police Service Commission to advertise and receive applications for the position of Inspector General of Police. The following provision of the law gives the President the power to solely nominate the Inspector General and forward his name for approval by Parliament.
The new law gives the office of the President more powers. Before, the Director General of the NIS could only be removed for listed reasons and through the process of a tribunal. Now, the President can keep him in office for any period of time, no matter how long or short, and then remove him at his sole pleasure.
Wasn’t it more prudent to fix what was not working, and give the institutional bodies that these public officers head more generous budgets, better paid officers, better equipment and resources?
Do parts of the Security (Amendments) Law contradict the Constitution? Yes.
Under the Constitution, national security cannot be used as grounds for the prosecutor to rely on secret or concealed evidence in a criminal trial. The rights to a fair hearing under Article 25 and Article 50 cannot be limited under any circumstances. Regardless of these clear provisions of the Constitution, the law now gives a prosecutor the power to conceal or use secret evidence in terrorism, money laundering and drug-related criminal trials.
On August 27, 2010 Kenyans decided they were entitled to and would be given every opportunity to participate in all policies and laws affecting them. Public participation is a national value. It is a virtue; not a vice.
Improving national security should draw the nation closer. The fissures within the nation should not be ignored. Kenyans have a right and desperately need to agree to disagree. It is not too late to invite everyone to the table for open discussions.
Let us stop burying our heads or drawing lines on the sand.
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