One of the advantages the State enjoys over other institutions is its monopoly of the legal instruments that compel citizens to comply with laws and regulations which guide public affairs.
That means, for instance, that since it has investigative instruments, such as the various arms of the police service, the State has within its powers the legal mechanisms to arrest any citizen who violates the country’s laws.
As such, and this is an important part of my argument, the State does not need to resort to extra-legal or extra-judicial methods as its first line of dealing with citizens it considers truant.
When Kenyans chose the hard road that is democracy, which citizens collectively agreed was the way they want their government to be run, they imposed a duty of care on all public and State officers to whom the people have donated their power. This is the basis of what John Locke, the British philosopher, described as “the social contract” between the people and the government.
It means the people give up the right to punish each other willy nilly and give that power exclusively to the State. This is done on the understanding that the State, in turn, will desist from acting capriciously. Unfortunately, the current administration appears to reneged on this social contract in its handling of youth who are using digital tools to express their feelings and attitudes towards the government and various public and State officers.
By so doing, it is making a bad situation worse by using the wrong method to punish those it considers to be digital wrongdoers. And as the English say, two wrongs have never made a right.
That is why those entrusted with instruments of power, such as the police, ought to be reminded that they ought to first use legal channels to punish what they consider to be digital crimes before they resort to abductions and enforced disappearances.
The work of carrying out investigations is daunting. All too often, investigative officers take cases to court — or to the Director of Public Prosecutions (DPP) — only to be rebuffed because they have not taken sufficient time and care to gather evidence and make their charge sheets watertight.
And this is where they sometimes miss the step when the blame the DPP or the courts for releasing suspects on technicalities. It is, however, instructive that with regard to the perceived digital offences, such as the silhouette images and other free speech expressions considered offensive to public morality, the police are yet to charge anyone. As such, they cannot argue that they did their best but courts freed the suspects haphazardly.
Any State organ or government-sanctioned agency that, therefore, uses abductions and enforced disappearances as its first response to these perceived offences is in breach of both the law and the public trust enshrined in the Constitution.
The Constitution expressly imposes a duty of care and the responsibility of upholding the Constitution itself and subsidiary laws on individuals who, on their own volition, seek elective office. The laws were, after all, agreed on when citizens either directly or indirectly set the foundation of the State as Kenyans did when they voted for the 2010 Constitution.
It is encouraging that the Cabinet Secretary for the Interior, Kipchumba Murkomen, and his environment counterpart, Aden Duale, have signaled that going forward, perceived offenders will be arrested and charged.
This is what the public has been telling the police all along and it is a message that Public Service CS Justin Muturi amplified at the weekend when he lamented about how the abduction of his son Leslie left his family anxious.
Sometimes, government institutions inflict needless pain on themselves when they deliberately bypass the law in the pursuit of national security interests. The danger with this is that when government plays rogue, it removes incentives for the citizens to be law-abiding.
What is worse, in the beginning, the State agencies involved only used to abet the abduction of Kenyans. Now they have liberalised this enterprise. Any country that feels its citizen in Kenya has gone rogue is opting to abduct them rather than use the long and tedious route of extradition.
It first happened to Dr Kizza Besigye of Uganda, and recently to Maria Surungi, a Tanzanian journalist. But is this the way a responsible citizen of the international community ought to behave, surely?
Mbugua is the Editor-in-Chief of The Nairobi Law Monthly and the Nairobi Business Montly. Mbugua@nairobilawmonthly.com
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