Our export trade is dependent on the rule of law. Our flower markets are dependent on compliance with the law. Billions of dollars are at stake.
Trade Cabinet Secretary Moses Kuria does not know this. If he knows it, he does not heed it. He is thus not the best face of Kenya to future ministerial meetings in the coming critical meetings on the EPA where these stakes are involved. Some plastic surgery is required.
His vile language and insults against the Nation Media Group, government servants, and public advertisers have damaged our own national leadership law. Article 73 of the Constitution commands as follows: “Authority is given to a State Officer [such as a Cabinet Secretary] “to be exercised in a manner that – … (ii) demonstrates respect for the people; (iii) brings honour to the nation and dignity to the office; …”
Mr Kuria instead demonstrated disrespect for the people of Kenya, and in the opinion of many has brought dishonour and indignity to the nation. Kuria still says, “I will not apologise to the NMG.” This further disrespect is additional disregard of Article 73. An injunction has already been issued against him. The refusal will be relevant in any further proceedings. He has also in the past come under unflattering scrutiny of the National Integrity and Cohesion Commission for his speeches. He also appears to be in breach of the National Values set out in Article 10.
Mr Kuria by his statements has in the opinion of many, violated three key parts of our Constitution, and thereby in their opinion infringed these three rights of the NMG. Article 33 vests in every Kenyan “the right of freedom of expression which includes (a) Freedom to seek, receive, or impart information or ideas…”
The second right and key part of the Constitution they opine is breached by Kuria is one that specifically protects, indeed guarantees, the freedom of the Press. This it does explicitly by Article 34: Freedom and independence of electronic, print and all other types of media is guaranteed…”
The third key provision they opine Kuria breaks is the right of every Kenyan to access to information. Article 35(1) reiterates: “Every citizen has the right of access to (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom.”
Whether Kuria thinks there is a violation of fact or constitution or other law by NMG or not, he cannot become prosecutor, jury, judge and executioner against NMG, government servants or advertisers. Indiscipline is prohibited to all state officers.
There is machinery available to deal with such problems: If Kuria disagrees with Nation’s facts or writing, he has to pass the matter on to the government’s law officers to advise and deal as provided for in the Constitution itself, and or in the criminal and many civil laws. But not speak as he has.
These three provisions are key to practice of democracy. Thus Kuria’s statements of last week are a threat to democracy. We have to nurture, not regress on, our hard-regained democracy. His words have also received wide publicity across Africa. His ministerial remarks do not help the continental aspirations for “good governance, respect for human rights, justice and the Rule of Law” (Africa 2063 AU Agenda).
Kuria, after refusing to apologise, then justifies his behaviour by a borrowed quip from overseas. But in Kenya today, it has no relevance at all. Because here we have a Constitution which is above us all, including Kuria, and it is for the court, not Kuria, to consider whether NMG has used its ‘powers without responsibility’, (meaning outside the Constitution and lawlessly) or not.
He should be humble and concede that others, among them the Nation professionals, may know more about their profession than he as an amateur does.
Such language, insults and abuse by our politicians including cabinet cfficers are no longer acceptable to Kenyans, whether supporters of Kenya Kwanza or Azimio.
In 2010, most people, supporters of different parties, felt these provisions were needed to correct the past, and that is why the Constitution has many sections requiring disciplined and respectful government behaviour and public speech, because the Constitution is the Manifesto of the People.
The writer is a senior counsel
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