A lot has happened to highlight the role of consensus building, free speech, the rule of law and constitutionalism, especially with regards to proponents and opponents of the Building Bridges Initiative.
Currently, there seem to be three schools of thought with regards to BBI. The first school wholly supports the process. It believes Kenya’s problem regarding inclusivity and unhealthy competition will be solved by, among other things, creating the post of a powerful prime minister and two deputies to further distribute the "national cake".
The second is opposed to BBI because, in its view, it is an elaborate scheme to block the deputy president from ascending to power in 2022. Since the infamous handshake, members of this group have been perceived as the new opposition by BBI supporters.
The third school is composed of people who feel that the Constitution we have if fully implemented, is sufficient to solve most, if not all of Kenya’s problems regarding elections, rule of law, equality, non-discrimination, and devolution.
Ideally, any change to the Constitution should be a process that is all-inclusive, respects all opinions and is based on consensus building. Changes should not be shoved down any person’s or group’s throat. No person has a monopoly of truth. Over the past week, the words of Senator James Orengo from over two years ago have become the embodiment of the danger of shortsightedness and partisanship when changing laws. Orengo, while addressing pro-government politicians who were pushing for laws that he considered unfair, cautioned them that governments eat their own children. He further predicted that those fronting the law were going to be crying in the near future.
His predictions appear to have come to pass. Over the past week, some leaders have found themselves in unfamiliar territory. Overnight, they have transformed into proponents of democracy and the rule of law, yet before and during the last elections, they were pro crushing of any form of opposition, protest or dissent through tough policing and authoritarian rule. One is even quoted calling for dictatorship in Kenya.
They seemed to support the violent arrest, deportation and subsequent dishonouring of court orders that Miguna Miguna was subjected to in 2018. In 2020, they are the ones calling for court orders to be honoured. It is noteworthy that freedom of expression includes the right to change one’s mind and to see the light. The arrest of Moses Kuria and alleged continued detention in violation of a court order directing his release demonstrated that Kenya had indeed gone full circle and that the oppressors were now effectively the oppressed.
Social media has been abuzz with old clips and tweets of the politicians supporting the oppression of others, juxtaposed with new ones calling for more democratic approaches that demonstrated their double-speak or their newfound fidelity to the constitution. However, in doing this, Kenyans are totally missing Senator James Orengo’s point; that when the Constitution and the rule of law are violated, it is only a matter of time before the violation is meted out on you because of constantly shifting interests. In the words of Martin Luther King Junior, “Injustice anywhere is a threat to justice everywhere.”
Under threat
The 2010 Constitution deliberately tried to ensure that every person is treated equally regardless of class or political ideology. Chapter Four elaborated on the fundamental rights and freedoms entitled to every person, and how and when these rights could be lawfully limited by the State. These rights include rights of persons arrested, right to a fair trial, bail and bond, freedom of expression, association and protest, right to information and right to privacy. It also gave the courts the power to intervene when any person or group of persons felt that their rights had been violated or under threat of violation.
Winston Churchill once said, “Some people’s idea of free speech is that they are free to say what they like, but if anyone says anything back, that is an outrage.” In the spirit of inclusivity, we should allow all voices to be heard as long as the words do not advocate hatred, incite violence, or propagate war.
Mr Kiprono is a Constitutional and Human Rights [email protected]
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