By Paul Ogemba
German dictator Adolf Hitler, widely blamed for starting World War Two, once said that the best way to take control over a people and control them utterly is to take a little of their freedom at a time, to erode rights by a thousand tiny… reductions. In this way the people will not see those rights and freedoms being taken until they are past that point where those changes cannot be reversed.
The authenticity of this attribution to Hitler has been the subject of debate, but there is no denying that that statement perhaps summarises the piecemeal amendments made to Kenya’s Constitution since Jubilee took over power in 2013, and which, on many an occasion, have gone unnoticed by the majority.
Lady Justice Mumbi Ngugi’s declaration that Section 29 (b) of the Kenya Information and Communication Act (KICA) was unconstitutional is the latest testimony of the “little” amendments to the law that diminish the gains Kenyans made in passing the Constitution, some of which have ended up in court while others have been passed under protest from the public.
According to constitutional expert Joe Midegwa, the trend and pace at which government is pushing down the new amendments are signs of a dictatorial regime out to wrest the people’s absolute power in a veiled manner that most won’t notice.
“We have witnessed the passage of controversial legislations which demean the spirit of the constitution. It is like the government is using its tyranny of numbers in the National Assembly to push the dictatorial agenda of muscling people’s rights. It is surprising this is happening when we have many individuals within government who fought for the freedoms esnhrined in the Constitution,” says Midegwa.
In December 2014, soon after the acrimonious passage of the National Security Amendment Act, Coalition for Reform and Democracy (Cord) leader Raila Odinga called on Kenyans not to sleep on the gains they had made by letting the government interfere with their freedoms.
What followed was a protracted court battle between Cord, joined by several civil society groups, against the government. Although the security amendments laws were necessary and justified to contain the rising threat of terrorism, the government inserted eight clauses which, according to the petitioners, were unconstitutional.
Justices Isaac Lenaola, Mumbi Ngugi, Hillary Chemitei, Hedwig Ong’udi and Joseph Onguto went ahead to rule that the eight clauses were a violation to people’s fundamental rights and do not add value to the fight against terrorism since there are sufficient laws that, if managed well, will secure the country.
The judges chose to strike a balance between protecting the rights of citizens and the need to have laws to counter threats of terrorism by declaring the eight clauses unconstitutional, null and void while upholding the rest of the Security Law (Amendment) Act 2014.
Among the inserted sections declared unconstitutional included Section 12, which required media practitioners to pay up to Sh5 million in fines or face a jail term of three years for publishing images of terror attacks; Section 20, which allowed police to detain any person suspected to be engaging in terrorism activities for three months, and Section 16, which would have allowed the prosecution not to disclose any evidence to an accused person.
Lawyer Demas Kiprono argues that the government’s tendency of passing unconstitutional sections in their legislations showed a lack of transparency and a return to impunity where state actors don’t want to be accountable to the public.
“It is like they use legitimate concerns to introduce illegitimate sections on the laws they pass. The government needs to formulate policies to promote transparency and engage the citizens in passing laws, otherwise we will have a government which cannot be questioned on the things they do,” Kiprono avers.
Whereas Article 33 and 34 of the Constitution frees the media from state control, the government, through enactment of the Media Council Act and the Kenya Information and Communications (Amendment) Act, sought to re-introduce that state control, which is now the subject of court litigation.
Senior counsel Paul Muite, who is leading media practitioners’ opposition to the new laws, argued that the trend of including some clauses into an otherwise good legislation is returning the country back to the dark days where the government had absolute control of people’s freedom.
“We cannot accept to clobber the gains we have made by allowing the Media Council Act and the Kenya Information and Communications (Amendment) Act to operate. The Constitution gives everyone a right to information which can only be achieved through a free media, but what we are witnessing is a systematic way of taking away of those rights through tiny amendments,” says Muite.
Lady Justice Ngugi’s ruling on Section 29 (b) of the KICA law did not only give media practitioners a new lease on their fight against the two laws but also provided relief for millions of social media users who risked being jailed and fined for expressing their opinion.
Section 29(b) stated that a person who, by means of a licensed telecommunication system, sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding three months, or to both.
The seriousness by which this section infringed on people’s freedom of expression was witnessed just a week earlier when a man was fined Sh5 million for allegedly abusing an MP through his Facebook account. The man had posted that the MP was misusing Uwezo Funds in his constituency, for which the MP sought redress. The judge relied on Section 29 (b) of the KICA Act to award the damages.
Lady Justice Ngugi’s reasoning was that the section did not meet the criteria set in Article 24 of the Constitution, which provides instances when rights can be limited, and that if the intention was to protect the reputation of others, then there are clear provisions in the law of libel which can be used when one is aggrieved.
There are currently over 20 Acts of Parliament passed by the Jubilee administration which are being challenged in court, not because they are bad laws but because of sections sneaked in, which the petitioners argue are unconstitutional.
The Law Society of Kenya has also challenged passage of amendments to the Judicial Service Commission Act (2015) which gives the President powers to appoint the Chief Justice and his deputy, contrary to provisions in the Constitution which vest that power with the JSC.
Lawyer Nzamba Kitonga argued that the law, which came into effect last December, amended critical sections of the Judicial Service Act, thus interfering with the independence of the Judiciary, and upset the doctrine of separation of powers between the three arms of government.
Kenya Human Rights Commission chief executive officer George Kegoro, in dissecting government’s assault on the Constitution through piecemeal legislations, says that the National Assembly should stop being used to water down the gains Kenyans made by approving the Constitution in 2010, and that the Executive should respect people’s will by engaging them whenever they make those amendments.
Another contested law speaks to provisions in the Public Audit Act 2015 which denies the Auditor-General powers to appoint his own staff, and gives the Public Service Commission and Executive powers to supervise operations of the office.
Another lawyer, Anthony Oluoch, has this to say of the sneaky provisions: “Various clauses in the Act are unconstitutional since they touch on the functions and powers delegated to the Auditor-General. What Parliament passed and got signed by the President did not represent the will of Kenyans when they passed the Constitution. There is no way the Executive can make rules on how it shall be audited unless they want to return us back to the era of unaccountability.”
What has also come into focus is President Uhuru Kenyatta’s hand in passage of these controversial laws. Cord has singled out nine laws which its says the president interfered with, and wants a court declaration that the President’s role is limited to making reservations but not sharing legislative duties through his own amendments, or insertion of fresh clauses to what has been passed by parliament.
Among the laws they claim the President used his position to influence their passage are the Retirement Benefits (Deputy President and Designated State Officers) Bill 2013, the Public Audit Bill (2014), the Central Bank of Kenya (Amendment) Bill 2014, and the Information and Communication (Amendment) Bill 2013. Others are the Public Procurement and Disposal (Amendment) Bill 2015, the National Police Service Commission (Amendment) Bill 2013, and the Excise Duty (Amendment) Bill 2015.