Governing by vengeance means there's no respect for rule of law

Senior counsel Pheroze Nowrojee. [David Gichuru, Standard]

An abduction took place recently. Then, persons with cases in court were told nothing would come of it. Options to leave were pointed out.

Such actions can only take place where there is no Constitution nor any belief in the Rule of Law. Yet they took place here, pursuant to orders given by persons in power.

Too often now, two types of governance are taking place, proceeding often in tandem. The first is, the claim made by those in power that they are always acting according to the Constitution and the Rule of Law. This is called Constitutionalism.

The second is, abduction, pulling people out of their houses and beating them up, gratuitous police brutality, breaking up peaceful demonstrations, ignoring orders of the very courts they rely on for being in power, threatening Executive interference with the Judiciary. These are also taking place.

This is called Contra-Constitutionalism. Contra-constitutionalism is acting systematically against the provisions of an existing constitution while it is still in force.

There is however a third category of events, governance by vengeance against an individual. Examples are abduction of a businessman, insults to dignity of our First Lady, hints about expulsion of citizens, fake gun regulations’ inquiries, getting Uganda to stop imports of Kenyan milk, and breaking up a major factory. It is neither constitutionalism nor contra-constitutionalism. It is plain lawlessness.

It is not a form of government. It is an addiction. These steps are not emerging from a policy. It is not, and cannot be, a constitutional policy, nor a cabinet policy, nor a national policy. It is the remnant of one-man rule. It is diverting Kenya from its real tasks. And halting economic progress. This is because these vengeance-based decisions are doing the following harm to Kenya:

1. They are damaging respect for our Constitution; when a constitution is in place and persons in power constantly act in open contravention of its well-known provisions, the country and society over a period breaks itself with illegitimacy and illegalities.
2. The individual they are fixated on harming and his closest proxies may have perpetrated many personal or even national wrongs. But there are ample provisions in the Constitution, in our laws and legal mechanisms to correct, punish, and recover redress constitutionally.  
3. These decisions are causing direct harm to the economic well-being of thousands of Kenyan producers and workers, as in the milk export mistake.
4. They are damaging our institutions, such as courts. It is contempt of court to coerce persons already in court to give up their cases. It is a boast of control over Judiciary to suggest that cases will get nowhere if they are still pursued after the Executive’s warnings.
5. They damage the Rule of Law by ignoring important institutions protesting against these wrongs. In immediate and timely sober words, the following institutions have issued a joint press statement of condemnation and protest: Law Society of Kenya, Kenya Human Rights Commission, Amnesty International and HAKI.
6. These institutions are our collective safeguards against those in power who may not have learnt, or have forgotten, history and our past, when actions like these were part of the widespread and continuous repression. Those are bad and dangerous precedents. Those regimes once announced publicly and shamefully, that they regularly threw the statements of such human rights bodies in the wastepaper basket. The government must respond. Otherwise, it is proof of One-Man Rule which is always deaf to sober and peaceful dissent.    
7. It once again reminds Kenyans that those in power had opposed the Constitution, and keep alive the suspicion that these persons are not concerned to win the people’s trust about the Rule of Law.
8. To ignore these institutions, will lead to establishment of more repressive state machinery to enforce coercion, because the persons in power will find that they can no longer get consent by convincing people.  

This is why these gross acts of vengeance which may gratify a few individuals in power, are dangers to our nation. We therefore always remember that the Constitution is the manifesto of our nation, even though these actions show that, instead of our Constitution, vengeance against one person is the manifesto of the persons in power. 

-The writer is senior counsel