Security agencies must preserve dignity of communities even during operations

‘Those are not people to be arrested. Why take them to court when they have killed? Who is going to be the witness? Can the dead be resurrected to testify? Let’s be fair — when such people are caught, let them be finished on the spot’.

With these words, Mombasa County Commissioner Nelson Marwa gave a shoot-to-kill order on terrorist suspects in the wake of a brazen gun attack on worshippers in a Likoni church in March. And, although Inspector-General of Police David Kimaiyo was quick to clarify that it is not government policy to kill suspects without due process of the law, the manner in which the government has gone about its latest operation to flush out suspected terrorists is not in accordance with the law.

The security operations, mainly concentrated in the Eastleigh neighbourhood of Nairobi where the majority of ethnic Somalis of Kenyan descent live, and now extended to other urban areas occupied predominantly by people professing the Islamic faith, has been done without regard to the need to protect the rights of individuals and communities as envisaged in the Constitution.

In Nairobi, for instance, as many as 4,000 people have been held at the Safaricom Stadium Kasarani for days on end without basic amenities such as food, clean drinking water or adequate sanitation. Men, women and children have been held in custody for more than 24 hours without being taken to court in contravention of the law.

Members of one ethnic community seem to be the target, yet we all know that the face of terrorism in Kenya has evolved with time to include people who are not necessarily Somalis or Muslim by faith.

MORAL AND LEGAL ENDOWMENTS

When we adopted a new Constitution in 2010, it was the hope of all Kenyans that the manner in which we would go about managing our public affairs, including security operations against terrorism, would be informed by the ethos of the new order.

The Bill of Rights as enshrined in the Constitution is an integral part of Kenya’s democratic state and is a framework for social, economic and security policies. The purpose of protecting human rights is to preserve the dignity of individuals and communities.

Human rights have moral and legal endowments that accrue to one by virtue of being a human being. It therefore follows that all citizens should be treated humanely.

This, however, is not to say that as a people, we should condone criminals in our midst who may be bent on perpetrating acts of terrorism in the name of religion or any other ground.

As a member of the National Assembly representing Christians, Muslims, Hindus, traditionalists and those who may not even believe in a Supreme Being, I feel for the innocent victims of the heinous attacks who lost their lives and limbs in Likoni.

On behalf of the people of Kisumu East Constituency, my heart bleeds for the family of Satrine Osinya, who lost his mother in the Likoni attacks.

As a matter of fact, we all prayed for Baby Satrine as surgeons undertook the delicate operation to remove the bullet lodged in his brain, the same bullet that claimed the life of his mother.

But as Mahatma Gandhi once counselled, counter-violence only begets violence. An eye for an eye can only lead to a nation of blind men and women; all unable to see because of their own acts of vengeance.

RECOGNISE ARTICLE 25

The greatest danger with Mr Marwa’s approach is that people who are not involved in any acts of terrorism would be victimised merely on account of their ethnic or religious association with suspected terrorists.

It is in this context that the plight of some of who have been rounded up in the security operations should be understood.

Granted, there could be bad elements among them. But the law requires security agents to still recognise the bold provisions of Article 25 of the Constitution on rights and fundamental freedoms that may not be limited.

When they have to be limited, the security agencies can do so only after obtaining an order from a court of justice. They include the right to freedom from torture, cruel, inhuman or degrading treatment, the right to a fair trial, and the right to an order of habeas corpus.

For the first time in Kenya’s constitutional history, economic and social rights are protected in the supreme law of the land. The right to freedom from discrimination is also entrenched in the Constitution.

It is these rights that I, as a lawmaker, want to see the security agencies uphold and safeguard as they go about the security operation to flush terrorists from our midst.

Mr Shabbir is the MP for Kisumu East Constituency.