Recent events in the country point to an ominous return to rule by decree and ultimately; dictatorship. The steely resolve with which the government has embraced political disagreements seems to borrow heavily from the old Nyayo Script.
The first element in the script is the projection of raw power. This involves deploying power totally disproportionate with the perceived risk.
The second element is the use of wanton force against relatively harmless Opposition. This is exemplified by the use of force against people sheltering in homes and away from the epicentre of protests including the use of live bullets some of which end up killing children.
The third element is the absence of feeling for victims including those like Baby Moraa who were merely caught up in the violence. This is intended to convey a message that the deployment of force is not negotiable, and that force will be used without limit.
How they do it
The fourth element is the mobilisation of extra-legal forces including mobilisation on tribal and party basis to countermand perceived threats ordinarily handled by the police and courts. Recently, the Nairobi Business Community has purported to act as a vigilante force with the approval of the security forces.
The fifth element is the use of rumour and in the Social Media era; fake news. This involves use of propaganda to create false narratives regarding topical issues. This double-edged sword is used to galvanise supporters and disorient the opposing side. It is deliberate disinformation and misinformation comprising lies and a spin on the truth.
In a telling interview on KTN News in June last year, Jubilee Party Vice Chairman David Murathe set out what was in store for Kenya should Uhuru Kenyatta win a second term. Mr Murathe declared that the second term of the Mr Kenyatta's presidency would be ‘bare-knuckled’. He stated that Mr Kenyatta would not handle the situation with ‘kid gloves’ anymore. In a sense, Mr Murathe appeared to cast the first term of the Jubilee Administration as a failure whose weaknesses were to be addressed in the second term.
The arrest and deportation of Miguna Miguna in total disregard of due process is a chip off the old block. You will recall that the fiery cleric Sheikh Khalid Balala had his passport cancelled while in Germany ostensibly because he was a Yemeni national. His fate was lighter compared to that of Stephen Mbaraka Karanja who died in police custody. In a matter that came before Justice Derek Schofield, the state failed to produce the deceased including his remains or reveal his place of interment. The search for his remains was not unlike that for the remains of Independence hero Dedan Kimathi.
Just as with the persistence of the Luka Kimaru in the Miguna Miguna case, the tenacity of Mr Justice Schofield did not yield acquiescence from the dictatorial regime.
It is characteristic of dictatorships to not only go against the norms of human conduct but also to act with singular conviction. The excesses of an overzealous policeman or agent of State are justifiable if they act to preserve the desired order.
It is this turn of events that we must grapple with. It is futile to imagine that the State will rest once those associated with the swearing in ceremony are arrested. As demonstrated by the actions against the media and Mr Miguna, the State intends to achieve its ends via executive decree and without regard to the law. Therefore, the first casualty in this new order is the Constitution.
Through Constitution of Kenya 2010 the people of Kenya rightfully became sovereign. Institutions of government, including the Executive derive their power from the sovereign will of the people. None of the arms of government is above the other and each is subject to oversight by the people. It is this concept that is at the core of the fight to impose the Executive as towering above all institutions including the Constitution which created it.
Consequently, there is a push to make the Constitution irrelevant and thereafter give the Executive a free hand to reinvent it via decree. In the fullness of time, orders issued by Cabinet Secretaries and in contravention of court rulings will become the norm and the law.
This process started far back with the subversion of the independence of the Police Service. A subservient National Assembly driven purely by partisan interest and incompetence ensured that the nascent independence of the National Police Service was nipped in the bud. Consequently, the Police Service remains a department of the Executive in all, but name.
Now we have a police force that has all its ears on the Executive even when the courts have pronounced themselves on a matter. As in the Kanu era, the courts are slowly becoming subordinate to the Executive. Their orders are subject to cherry-picking by the Executive or are simply ignored. For now, rights related to freedom of speech, assembly and expression are under siege. It is only a matter of time before business disputes are settled the same way with the police following the direction of the Executive as opposed to that of the courts.
Two instances of police involvement in business disputes come to mind. These are; the tussle between the Mombasa County Government and a service provider in waste management or the recent attempt to take over the Temple Point Resort in Watamu. These are pointers on where we are headed if Executive decree becomes the norm.
With these pointers in mind, we must rise and be counted on the side of the Constitution. This duty falls on all of us irrespective of political persuasion, tribe or creed. No one person or group of persons should be allowed to usurp the constitution.
Finally; be warned that the usurpation will not come in a flash but in small incremental steps that hardly raise alarm in many of us.