Banning anti-IEBC protests is unconstitutional, Mudavadi warns Nkaissery

ANC leader Musalia Mudavadi says action by Interior CS Joseph Nkaissery with the connivance of the Attorney General Githu Muigai to outlaw the right to demonstrate amounts to an overthrow of the constitution and declaration of martial law.

In a press statement Mudavadi said, “For all practical purposes, the CS has suspended Chapter Four on the Bill of Rights in a blinker of executive authorization to also curtail freedom of association. The remedy in banning is not provided for in any law hence suspicion that Jubilee is intent on governing through unconstitutional edits and introducing military authoritarianism.”

According to Mudavadi, this kind of action is unnecessary unless it is admission that executive, legislative and judicial branches of government have failed to function effectively.

“The Jubilee government needs reminding that only courts can uphold or limit enjoyment of fundamental rights and freedoms. Conversely, the government has a duty to observe, respect, protect and fulfill the rights and freedoms in the Bill of Rights. Banning demonstrations is abdication and violation of this very constitutional demand.”

He said Jubilee is trying to justify toppling the constitution by the unilateral suspension of articles 36 freedoms of association and 37 assembly, demonstration, picketing and petition of the constitution under undeclared state or emergency and without going through Parliamentary approval.

“This action must be condemned and resisted lest the country is thrown into a constitutional crisis where the country is run by counter-constitutionalists within the executive under undeclared military law. This is an extremely retrogressive act of betrayal when the world is celebrating the first time a woman – Hillary Clinton - has been nominated to run for presidency in the USA.”

In the Arab Spring uprisings, in Tunisia, Egypt etc., the regimes purported to suspend the constitution and called in the military as caretaker in the same manner Nkaissery is undermining the constitution.

Martial law is imposed only in extreme situations to maintain order and security or provide essential services. But Jubilee seems threatened by popular protest or fear of imagined insurrections.

It is important to understand that there is no law that empowers anyone or institution to criminalise the constitution. When such action is taken, it amounts to a coup or suspension of the constitution.

“I am mortified that the free advice I gave the president to take charge at the burial of Soita Shitanda may have been taken literary to mean a license to overthrown the constitution and introduce military dictatorship.”