BY KIBE MUNGAI
The printers ink had hardly dried up when the secretariat of the Committee of Experts (CoE) found out that some of the copies of the Proposed Constitution of Kenya (PCK) rolling out of the Government Printer contained the words “National Security” in Article 24(1)(d) in Chapter 4 which deals with Bill of Rights. The said words were illegally inserted as they were not in the official version of the PCK submitted by the CoE to the Attorney General for onward transmission to the Government Printer. The effect of the said illegal insertion was that Article 24(1)(d) read as follows:
The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice national security, the rights and fundamental freedoms of others (emphasis supplied).
In the wake of that outrageous discovery both sides of the political divide united in not only condemning the illegal insertion but also demanding investigation of the incident to determine the culprit(s) and ensure prompt prosecution of offenders. Attorney General Amos Wako aggravated the outrage when he claimed that unnamed senior officials of the National Security Intelligence Service (NSIS) requested him and the Parliamentary Select Committee to make such amendments but had turned down their request. Thus the Daily Nation of Friday May 14, 2010 in calling for a swift and impartial probe into the apparent sabotage of the draft Constitution implored:
The investigation ordered by the Attorney-General must be carried out swiftly and without fear or favour. All those in his office involved with the document must be fully investigated, together with officers at the Government Printer, the NSIS and their seniors at the Office of the President who might have had opportunity and motive to insert the amendment.
To its credit the NSIS did not deny that it had tried in vain to have the said words inserted in Article 24 but dissociated themselves from the illegal insertion. In the heat generated by that discovery public debate ended up revolving around the motives of the unseen hand that inserted those words either at the AG’s office or at the Government Printer. The first motive was that the illegal insertion was the handiwork of anti-reform forces who wanted to subject the Bill of Rights to national security thereby negating one of the major pluses of the PCK. Secondly, it was claimed that the said words were inserted in order to sabotage the constitution review process. To my knowledge, not a single person paused to ask why the NSIS had made its request and whether such words were necessary in the first place.
The Kenya Times of Tuesday May 25, 2010 reported that the probe into the illegal edit had been called off upon the investigators concluding that the NSIS had ordered the insertion of the “offensive words” with apparent blessings of higher authorities. Knowing that a healthy democracy is not possible with mentalities inclined towards resolving issues on the grounds of motive I decided to reflect upon the matter a little bit more profoundly and the result is this: whereas it is not easy to discern the precise motives of NSIS, I condemn the people who ordered the offensive words to be inserted in the PCK but I hasten to add that the draft is poorer without such words and would certainly be better with an entire clause making provision not only for national security but also public order, morality et cetera.
At the core of the truism that freedom is responsibility is the expectation that in a free society public discourse should never be settled on a compromise of sentiments and balance of fears. As it were, whereas we must allow to be guided by the impulse of our hearts our individual and collective mind must determine our actions and course of things. Regrettably, in the debate on the insertion of the words “national security” in the draft this caveat has been trampled upon with abandon. This is why in belated mitigation of our national lethargy for critical thinking I wish to advance three broad arguments why the pride of place must be found for the words “national security” and its related concerns in Article 24 of the PCK and why it was cowardly for higher authorities to deny responsibility for attempted inclusion of those words.
I. The Role of Government and Mandate of the NSIS
According to the classic theories of the State, the main purpose of the State is to secure “lives, liberties and estates” to use the words of John Locke who wrote the Two Treatises of Civil Government in order to justify the principles of the Bill of Rights and the “Glorious” Revolution of 1688. The modern theory expressed by British Philosopher Harold Laski in A Grammar of Politics views the State as an organization to enable the mass of men to realize social good on the largest possible scale.
To enable the State to fulfill its purpose, it is endowed with force, with coercive power, but force is not the essence of the State, but only its criterion. The Government as the agency of the state, is vested with coercive power in order to compel obedience to its laws for the preservation of order and for the common good of the community.
The Constitution and statutes are the legal instrument by which the coercive power of the State is regulated in order to ensure that the rights and freedoms of the citizens are secured. In Kenya such statutes include the Public Order Act (Cap 56), the Preservation of Public Security Act (Cap 57) the Police Act (Cap 84) and, yes, the National Security Intelligence Service Act ( No. 11 of 1998). During this era of globalization which has been accompanied by new challenges such as terrorism and social-economic discord, the public order and security functions of the State have grown considerably to an extent that one would be right in positing that the preservation of public order and security is the raison d’etre of the modern state.
In the essay tilled The National Security State Gore Vidal narrates how since end of the 2nd World War the statesmen in the US National Security Council have manipulated the American people, economy and politics to revolve around service of a State whose raison d’etre is military supremacy and global dominance of an elite that consistently exaggerates international crises and the presumed risk they pose to the USA and its people. The end product of this massive manipulation of power is the emergence of the USA as the foremost and ultimate National Security State which spends upwards of 60 percent of the federal government budget on national security. If the USA is the National Security State writ large, Kenya is a national security state writ small.
In its 100 years existence as a State, Kenya has always danced to the beat of the political and economic security of its privileged elite. Wars and expeditions of conquests and pacification of native tribes were waged at the birth of the nation to secure the country for the white settlers and in post-uhuru era gross human rights violations were committed in the name of national security. Even today national security projects remain the perfect foil of grand corruption. Yet to say all this is no denial of the fact that national security is a legitimate interest of any modern State as the reality of coup-makers, Al-Qaeda and Al-Shabaab type terrorism, Thai-type insurrections and the 2008 electoral melt-down in Kenya amply demonstrate.
In view of the foregoing, all modern constitutions that enshrines individual rights and freedoms usually – if not always – make provision for restrictions of rights and liberties in the interests of defence, public safety, public order et cetera. Instructively, Section 71 of the current Constitution which protects the most important of all rights – namely the right to life – provides as follows:-
71. (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.
(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in those cases hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such an extent as is reasonably, justifiable in the circumstances of the case –
a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or
d. in order to prevent the commission by the person of a criminal offence,
or if he dies as the result of a lawful act of war.
It is equally notable that Section 14(1) of the Police Act (Cap 84) provides that the function of the Police Force is the “maintenance of law and order, the preservation of peace, the protection of life and property, the prevention and detection of crime, the apprehension of offenders and the enforcement of all laws and regulations with which it is charged”.
This now brings us to the NSIS statute. Section 5(1) of the National Security Intelligence Service Act, (No. 11 of 1998) provides that the powers and functions of the NSIS include:-
(a) Investigate, gather, evaluate, correlate, interpret, disseminate and store information, whether inside or outside Kenya, for the purposes of –
i. detecting and identifying any threat or potential threat to the security of Kenya;
ii. advising the President and the Government of any threat or potential threat to the security of Kenya;
iii. taking steps to protect the security interests of Kenya whether political, military or economic;
(f) subject to the provisions of any other written law, perform such other duties and functions as may, from time to time, be determined by the President to be in the national interest.
Under Section 2 the term “threat to security of Kenya” means –
a. any activity relating to espionage, sabotage, terrorism or subversion or intention of any such activity directed against, or detrimental to the interests of Kenya and includes any other activity performed in conjunction with any activity relating to espionage, sabotage, terrorism or subversion, but does not include any lawful advocacy, protest or dissent not performed in conjunction with any such activity;
b. any activity directed at undermining, or directed at or intended to bring about the destruction or overthrow of, the constitutionally established system of the Government by unlawful means;
c. any act or threat of violence or unlawful harm that is directed at or intended to achieve, bring about or promote any constitutional, political, industrial, social or economic objective or change in Kenya and includes any conspiracy, incitement or attempt to commit any such act or threat; and
d. any foreign-influenced activity within or related to Kenya that –
i. is detrimental to the interests of Kenya; and
ii. is clandestine or deceptive or involves any threat whatsoever to the State or its citizens or any other person lawfully resident in Kenya;
Since the discovery of the illegal edit of the PCK the Government has openly declared that the enactment of a new Constitution is a legitimate State project under the Agenda IV reforms. If that be the case I am persuaded that it was within the mandate of the NSIS to try and fill up a legal gap that may occasion great suffering to this country and danger to national interest in future.
II. The Objectives and Shortcomings of the Review Process.
According to Section 4 of the Constitution of Kenya Review Act (No. 9 of 2008) the first object and purpose of the review of the Constitution is to secure provision “guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the well-being of the people of Kenya”. The operational organs for the current phase of the protracted constitution review process are the Committee of Experts, the Parliamentary Select Committee and the National Assembly. Of course the referendum is the final organ but its actual role will be to ratify the PCK that was presumably passed by the National Assembly in late March, 2010.
It bears noting that Section 6 of the Review Act requires the organs of the review to, inter-alia, “ensure that the national interest prevails over regional or sectoral interests”. In normal times Parliament is the foremost institution for protecting the national interest but we all know that it was unable to do this when the draft constitution was tabled before it because section 47A of the Constitution effectively converted Parliament into a talk shop and rubber stamp of the Committee of Experts.
Moreover, under Section 34 of the Review Act the role of the Attorney General – who is the principal legal adviser of the Government – is to publish the draft Constitution submitted to him by the National Assembly. Section 34(2) specifically prohibits the AG from effecting any alteration to the draft Constitution, except for editorial purposes, in consultation with the Parliamentary Select Committee. In short, the PCK is the end product of a process in which the government (read the National Assembly and the Attorney General) was unable to influence or were disabled by law from so doing. This may or may not be a desirable thing.
On the one hand, is a desirable thing for government not to play dominant role in constitution-making especially when we consider the historical distrust of government by Kenyans. On the other hand this is undesirable first because the transition to a new constitutional order is contemplated and mid-wifed by the existing Constitution. Secondly, there are certain things that government and its agencies are better placed to know than the citizens even under the guidance of the Committee of Experts. In this regard, I am of the view that since the Bomas Conference security matters have not received fair and competent treatment by organs of the review process.
Viewed against this background, I am inclined to view with empathy the apparent attempts by the NSIS to amend Article 24 of the PCK. Under Section 5(1) of the NSIS Act, the Service may “perform such other duties and functions as may, from time to time, be determine by the President to be in the national interest”. Without a doubt both the review process and the contents of the new Constitution are matters of the highest national interest. It seems to me that the national interest may not have been brought to bear in the review process and on some of the provisions of the PCK such as the security arrangements of the State. In noticing this omission whilst the review process is in progress, I commend the NSIS and give it a banquet. But I hasten to throw a barb at the Government for lacking the courage to stand up for the truth – the spectre of either a security vacuum or a black-hole unless Article 24 is amended appropriately.
III. Consequences of the Missing Security and Public Interest Clause in Article 24 of the PCK
Most, if not all, modern constitutions contain restrictions on or limitations to the enjoyment or exercise of rights and freedoms. Such restrictions are designed to ensure that the exercise of rights and freedoms by any person will not adversely affect public order, national security, public health or prejudice the rights and freedoms of others or the public interest.
A constitution is strong rather that weaker by contemplating or making provision for such restrictions on or limitations to the enjoyment of liberties by various persons. For example, Article 29 of the Universal Declaration for Human right, 1948 (UHDR) provides as follows:-
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purpose and principles of the United Nations.
Similar restrictions are contained in the European Constitution for the protection of Human Rights and Fundamental Freedoms, 1950 that was a major influence on Kenya’s Independent Constitution’s Bill of Rights which incidentally remains largely the same under the current Constitution. Under the European Constitution the protection to rights and freedoms are subject to such limitations as are contained in the constitutional provisions.
Thus Article 11 of the European Convention which deals with freedom of assembly and association provides as follows:-
Article 11 – Freedom of assembly and association
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Similarly Section 80(2) of Kenya’s Constitution which enshrines protection of freedom of assembly ad associations provides inter-alia, as follows:-
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to he extent that the law in question makes provision-
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health:-
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons;
(c) that impose restrictions upon public officers, members of a disciplined force, or persons in the service of a local government authority.
The point is therefore made that restricting the enjoyment of rights and freedoms to national security is not ipso facto wrong and may indeed be necessary. Understandably, it was beyond the Bomas delegates (particularly the active district and civil society representatives) to comprehend the significance of these concerns. No wonder the Wako draft which was rejected in the 2005 referendum contains that provision in the following terms in Article 34(1)(b)(vi):-
The protection of national security, public safety, public order, public morality or public health.
As regards the above clause the PCK is identical the Bomas draft as both of them omits it. Now that the attempt by the NSIS to insert the words “National Security” as a substitute for that clause has come a cropper a little inquiry into the consequences of that omission is in order.
As adverted above, there are two consequences. First, the omission of that clause or two words will create a legal vacuum around the constitutionality of the various statutes that deals with public order, national security and other public interest concerns. These statutes include the Public Order Act, Police Act, Preservation of Public Security Act and the NSIS Act. The reason for this contention is simple.
The broad purpose of Section 24 is to provide limitation of rights and fundamental freedoms in at least three ways. First is to ensure that limitations on rights and freedoms are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Secondly, is to provide for the litmus test for any legislation that seeks to limit rights and freedoms. Thirdly, it casts an obligation on the State or any person seeking to justify such limitations to justify to the court, tribunal or other authority that the requirements of Article 24 have been satisfied.
There is no denying that public order and security laws are necessary instruments of a modern State. Invariably, such laws contain many limitations on rights and freedoms that may or may not be reasonable and justifiable in a democratic society. In my view, such necessary laws may have to be struck out as unconstitutional because the PCK does not contemplate their existence. To my mind such eventuality will be an open invitation to political instability at best and anarchy at worst. No doubt this would defeat the foremost objective of the constitution review process namely guaranteeing peace, national unity and the integrity of the Republic of Kenya.
The second consequence of the omission in Article 24 is less obvious to the untrained eye namely that the omission will create a blackhole in matters of public order and national security. Look at it this way. If the PCK is passed without amendment to Article 24 that will not necessarily mean that Parliament will repeal existing public order and security laws or even amend offensive provisions. Moreover, there is nothing to indicate that the courts will accept the invitation to declare such laws or offensive provisions as unconstitutional. What this means is that the application of such laws will be immune from Article 24 as the State or any person will reasonably argue that public order and security laws were not intended to be limited under Article 24. In plain terms the limitations contained in such laws do not have to be reasonable and justifiable in a democratic society and the State or its agencies do not have to justify the application of such laws to the courts and other authorities. This is what I call a legal blackhole in the application of public order and security laws and it requires no genius to decipher the danger it poses to the Bill of Rights as a whole.
It helps to remember that the NSIS Act was enacted in the first place to bring the opaque and quasi-criminal operations of the then Special Branch Police under the control of the law. It would be tragic to forget the lives lost, broken bones, blood and tears shed and sorrow occasioned by operations of the Special Branch against alleged enemies of the State in the name of protecting national security. Guarding against a return to the dark days when national security was protected in a legal blackhole is a solemn duty of a responsible society. Accordingly, the country’s top leadership must summon the courage and conviction to find a way of redressing the dangerous omission in Article 24 which the NSIS was apparently compelled to fill-up illegally. This to me is the ultimate test of whether the current crop of politicians has any statesman among it!
(Mr Mungai is a Nairobi lawyer)