By Patrick Mutinda
“Death cannot be a reward that a society gives to those who devote their time towards upholding the rule of law and human rights” – Okubasu Dancun Munabi
What is rather saddening is that while the police bear with themselves the duty to protect the dignity of every person, including the arrested, it is the same police that are, at present, in the thick of things, regularly accused of killing those in their custody. Perhaps we should call this murder in the first degree…And why not?
Society is a characteristic of different norms which maybe ethical in nature or even moral. These norms require a certain standard of behaviour by the members of that society. It is through these norms that an act is regarded legal or illegal, ethical or unethical, moral or immoral. Through these norms, a society gets to determine the manner in which the people interact and coexist. Furthermore, it is unquestionably assumed that these norms elicit conformity, and that there is a greater correlation between people’s normative beliefs and their behaviour.
These normative beliefs are that people should follow the prescribed behaviour, which is often that which the society considers morally, ethically and legally upright, taking every other factor as a constant. Simply put, it is through this prescribed behaviour that people are required to always respect the sanctity of life, while through all efforts, promoting its longevity.
An extrajudicial killing is the killing of a person by governmental authorities without the legal sanction of any judicial proceeding of legal process. Furthermore, by dint of Section 3(a) of the United States Torture Victims Protection Act, extrajudicial killing is defined as a “deliberate killing not authorised by a previous judgement pronounced by a regular constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples…”
Balance of rights and justice
This definition carries with it the elements which, taken together or singly, constitute an extrajudicial killing. To start with, a killing of that nature mostly is unauthorised by a judgement of a competent court having the jurisdiction to do so. This means, for any derogation from the right to life, there has to be an order by a competent court to that effect, explaining the reasons why it must be conducted. Secondly there has to be due process.
Due process is understood to be the legal requirement that the State must respect all the legal rights that are owed to a person. It balances the power of the law of the land and protects the individual from it. It is because of the concept of due process that John of England in the Magna Carter in Clause 39 promised thus:
“…No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
On the other hand, enforced disappearance is considered by the International Convention for the Protection of all Persons from Enforced Disappearances as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person.” This definition is akin to the fact that, just like extrajudicial killings, enforced disappearance is, too, undertaken under the or support, so to say, by the state or its agents, but with strong disregard to due process.
The rights to life, liberty and association are protected both internationally and nationally. The International Covenant on Civil and Political Rights (ICCPR), in its preamble, recognises the need of every ideal human being, as it calls them, to enjoy the fundamental rights and freedoms to be provided with conditions that only facilitate that enjoyment. It is to this effect that Article Six of the covenant protects the right to life, to the extent that no one shall be deprived of his life arbitrarily.
Further, Article 9 of the same Covenant outlaws the arbitrary arrest and detention of every person. Pointedly is the understanding that these rights are designed and structured in a manner that, by being protected, promoted and respected, they, to the least, facilitate the realisation of human dignity, which is all but important in the advancement of human beings in a free and fair society.
General Comment No. 3 of the African Charter on Human and Peoples’ Rights on the right to life (Article 4) seeks to render an understanding of what the right to life entails. It begins from an understanding that the right to life is the fulcrum of all other right. By being the pivot that anchors all other rights, it envisages not only life but also further a dignified life. That dignified life imposes the State with responsibilities to protect, respect and promote life.
While the comment requires a broader interpretation of the right to ensure a dignified life through the realisation of all other rights, it also talks of arbitrary deprivation of life, which includes a lack of appropriateness, justice, predictability, reasonableness, necessity and proportionality. Impliedly, the taking into account of the above requirements does justify the deprivation of the right to life.
Closer home, the Constitution operates in the spirit of respect for the rule of law. It aspires for a nation that respects, inter alia, the sanctity of life of its people – the people whom it vests with the sovereign power. Article 26 guarantees the right of everyone to life.
Sub-article 3 prohibits the taking of the life of anybody except under the authorisation of the Constitution, or any other written law. As the Constitution does protect the right to life, so it does with the right to association.
Article 36 protects the right of association. By being a right, people are allowed the liberty to choose who to associate with, but more importantly able to form associations for their advancement. All these rights seek to promote the inherent dignity of the person, which is the most important element in human rights discourse by dint of Article 28. Furthermore, Article 25 talks of rights, which may not be limited.
Amongst them is the freedom from torture and cruel, inhumane or degrading treatment or punishment. This freedom seeks to protect the dignity of the person protected under the Constitution. Further, it outlaws torture as well as inhumane treatment, which may include slavery or arbitrary arrest, as well as arbitrary deprivation of life.
Both enforced disappearances and extrajudicial killings are not accepted in a free and open democratic society. They go against human dignity, respect for the sanctity of life, the right of a people to associate as well as access to justice as well as against the norms that a society subscribes to. Their derogation threatens democracy, threatens the peace of a nation, and, more importantly, violates the human race as they are held under high esteem to the extent of being inviolable.
Having a constitution that recognises the importance of respect for humanity is the best thing ever for the Kenyan people. We, therefore, must take it upon us to respect the text, apply it to our advantage and, above all, own it. For a Constitution that is not owned by the people it governs is nothing but fairy tale.