Jesus would’ve had a precarious birth under Kenya’s new security law

Just imagine what Joseph and Mary may have gone through if Kenya’s new law had been in place in Israel those days.

Let’s look for a moment at the Bible. “In those days a decree went out from Caesar Augustus that all the world should be enrolled…and all went to be enrolled, each to his own city. And Joseph also went up from Galilee…to Bethlehem…to be enrolled with Mary, his betrothed, who was with child. And while they were there, the time came for her to be delivered. And she gave birth to her first-born son…and laid him in a manger, because there was no place for them in the inn.”

So, we assume that Joseph had married Mary in a legal ceremony, where they paid their dues and the Rabbi had been validly appointed a “marriage officer” by the registrar.

The Emperor had ordered a census, which meant registration and head counting for all. This must have been a massive operation; an incredible mass movement with so many people on the road, so many thieves and so much traffic.

CORRUPT ROMAN POLICE

Certainly that trip was no fun; a pregnant wife on a faithful donkey, but a donkey nevertheless.
The Roman police were notoriously corrupt. They must have been on the alert on the road for good and bad reasons.

Many good guards were protecting the crowds, while unscrupulous officers used speed guns, police abstracts and Alcoblow to procure some kitu not so kidogo for their first Christmas season.

Kitu kidogo is the backstabbing of the law. It opens the doors to abuse, and the more intrusive the law is, the wider the abuse.

Section 62 of the Security Laws (Amendment) Act allows an officer of the Service to stop and detain any person whom the officer suspects of engaging in any act or thing or being in possession of anything which poses a threat to national security.

Charles Kanjama told me how he witnessed hundreds of commuters being arrested for boarding matatus without seatbelts. Some of them didn’t have enough money to be bailed out.

In Jerusalem, Mary would have been let free for they had compassion on expectant mothers, but Joseph would have gone in without a doubt.

Our new law also extends the period for the arrest and detention without charges. The baby would have been born in jail, not in the stable.

Section 72 and 73 of the new law also give way to unusually long prison terms for intended crimes and opinions, which is not usually acceptable in modern human rights legislation. Joseph could have spent 20 to 30 years in jail.

A COUPLE FROM THE NORTH

Joseph had no M-Pesa left by the time he was approaching Bethlehem. The traffic to enter Jerusalem may have been nasty; the police searched everyone and asked for IDs and also passports from the northerners.

Mirrors were passed under donkeys. The guards didn’t know what for, but they imagined that this was a preventive measure, just in case grenades had replaced the donkey's original male-hood. Joseph must have had a hard time.

They arrived in Bethlehem for the census. First and foremost, they had to look for an Inn. But everyone was afraid of hosting a couple from the north.

The Security Laws (Amendment) Act amended the Rent Restrictions Act. Now, “every landlord of premises shall keep or cause to be kept records of every tenant who rents the premises.

These records include: name and address, email, telephone number and the identity card or passport number of the tenant and such other particulars as may be prescribed by the Cabinet Secretary in Regulations.”

‘ANY OTHER JUSTIFIABLE CAUSE’

Section 106 would also apply. This section amends the National Police Service Act by granting to the Police station the function of maintaining security within the locality and requiring hotels and such establishments offering accommodation facilities to maintain a record of all the guests within their facilities, indicating in respect of each guest the: “Name, Identity card or passport number (which Mary and Joseph did not have), telephone number, email address and, interestingly, any unique character obtaining to such guests and submit such record to the police station at least once every week.”

Mary and Joseph did not have any ID. They had come to obtain ID. This is why they could not get a place at the Inn but had to opt for a stable, with friendly animals.

Of course, getting an ID was not easy. The Security Act amended the Registration of Persons Act and included a new section 18A, which says: “The Director may cancel the registration and revoke the identity card of any person issued under this Act if card was obtained through misrepresentation of facts, concealment of material facts, fraudulently, forgery, multiple registration; or any other justifiable cause.”

It is precisely this last line, “any other justifiable cause” that “causes” great concern. This ‘Pandora clause’ could condone any type of abuse.

INTERROGATE THE MAGI
Naturally, section 61 also amended section 5 of the National Intelligence Service Act by deleting the words “to provide a confidential security report” appearing in subsection (1) (g) and substituting them with the words “security vetting”. Mary and Joseph could have spent years undergoing such vetting, as the time frame was not determined.

Mary and Joseph’s status would have clearly raised the suspicion of the State. Section 66, which amended the National Intelligence Service Act gave the government the power to obtain whatever information it needed to extract from the Magi from the East.

According to this section, any member of the Service is authorised “to obtain any information, material, record, document or thing and for that purpose – enter any place or obtain access to anything; search for or remove or return, examine, take extracts from, make copies of or record in any manner the information, material, record, documents or thing; monitor communication; install, maintain or remove anything; or do anything considered necessary to preserve national security.”

ANGELS RISKED JAIL

After listening to the Magi’s story, Herod ordered that all children below two years of age should be killed. Once again, the end justifies the means.

If any official was bribed not to kill the child Jesus, then that official was responsible for the empire’s ultimate failure. No matter what laws, instructions or directions are in force, when corruption creeps in the systems fail, though in this case the law was unjust.

Finally, the baby is born in a stable, the equivalent of a garage today. The angels publish the news, “A King is Born”, which in the language of section 66A disturbs public peace.
They would have been guilty of a felony and been liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years, or both. If any media house had caught this news item and spread it, the fine would have gone up to five million.

In this article, dear reader, I have taken some real and historical situations out of context, and looked at them from a point of view that may help us realise that any law can be twisted and transformed from being an instrument of prevention into a tool for repression.

PREVENTION TO REPRESSION
Has Parliament done well by amending security laws? Yes and no. Some laws needed review and harmonisation.
Law cannot be an impediment in guaranteeing everyone's security. But security laws need to be carefully drafted so as to help the government restrain itself against the constant temptation of abuse; absolute power corrupts absolutely.

Was the Constitution somewhat unrealistic when granting some personal liberties and responding to aspirations? Yes, it aimed too high too fast and conditions on the ground were still precarious.
The danger and the main challenge for the security apparatus is the delicate balance between prevention and repression. Prevention is based on the judgment of intentions of the crime a subject intends to commit, but has not yet committed.

Proving this is almost impossible and this is where most abuses of power usually take place, for prevention easily degenerates into repression.

Repression flourishes where there is corruption. No matter how many laws we change, for as long as the impunity of kitu kidogo remains with us we can surely say that Jesus could not have been born in Kenya.

May these thoughts elicit in every single Kenyan, be we police officers, politicians lawyers, teachers or civil servants, a change of attitude.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi