The 2010 Constitution made some mistakes on security
What you need to know:
- It is not entirely Somalia’s fault. Some years ago, he was abused and beaten up by adolescent US, who entered his house without his permission. It shouldn’t have been done.
- The constant danger Kenya faces is the temptation to push the pendulum to the other extreme, to tighten all lose ends, all laws, and give the State unchecked powers.
- A bad provision is Section 103 that amends the National Police Service Act by inserting a new subsection (3A).
- The amendments could easily be jeopardised by any petitioner who puts together a good case and convinces the courts of the unconstitutionality of the amendments the House passed yesterday.
A year ago we ushered Kenya’s Golden Jubilee. We had turned 50!
I argued back then that contrary to common perception, a 50-year-old country is, in human terms, a little child. I based my argument on the genius approach of Hernán Casciari, Argentine journalist and writer. Casciari said that countries are not better or worse, but are simply different in age.
For the United States, nothing much has changed since then. He’s still an 18-year-old reckless teen who likes to attack the boys. His identity crisis persists; he knows his mother, but isn’t sure who his father is.
Israel, the 62-year-old intellectual who has read and suffered a lot, is still throwing stones at Palestine, the girl washing clothes in the house next door.
Last year, when I wrote the Golden Jubilee post, I looked at a good number of countries. The list was long. Then, Kenya was just a three-year-old toddler. We are soon turning four as the clock ticks.
Kenya is beautiful, cheerful and sharp as ever. Although she is still at the kindergarten, the African Union, where she commands some respect, she is starting to understand the world. She has been attacked and injured by some grownup bullies.
Somalia, who with Egypt is one of the oldest men in Africa, is one of them. He used to go out with Ethiopia, Africa’s oldest widow. He felt cheated when Ethiopia, at a rather advanced age, had Eritrea.
CONSTITUTION ‘UNSETTLED POLICE’
Somalia spends the day fighting his neighbours. It is not entirely Somalia’s fault. Some years ago, he was abused and beaten up by adolescent US, who entered his house without his permission. It shouldn’t have been done.
Now, little Kenya has to defend herself and she is absolutely at a loss on how to deal with such a fiery neighbour. New laws? New scanners? New round mirrors? New arrests? Greater repression? A combination of them all? It’s difficult to say.
The constant danger Kenya faces is the temptation to push the pendulum to the other extreme, to tighten all loose ends, all laws, and give the State unchecked powers.
The 2010 Constitution made some key mistakes with regard to security. It went too much and too far into details. It unsettled police structures and powers, not only theoretically but also practically. This needed to be corrected.
CAUSE FOR CELEBRATION
The Security Laws (Amendment) Bill of 2014 that was passed yesterday in a messy, confrontational House attempted to reshape the security apparatus. It contained good and bad provisions.
A good provision is the new section 251A in the Penal Code. It gives every mother, wife, sister or daughter in town a cause for celebration. It says: “A person who intentionally insults the modesty of any other person by intruding upon that person’s privacy or strips such person, is guilty of a felony and is liable to imprisonment for a term not exceeding twenty years.”
A bad provision is Section 103 that amends the National Police Service Act by inserting a new subsection (3A). This new section limits the criminal responsibility of police officers to a maximum of ten years. This is clear discrimination, which sets aside police officers from other Kenyans.
This change goes against the constitutional principle of equality before the law and contradicts other provisions of the same National Police Service Act.
More care, more thought, should have gone into these amendments. They could easily be jeopardised by any petitioner who puts together a good case and convinces the courts of the unconstitutionality of the amendments the House passed yesterday.
CHAOTIC INSTITUTIONS
After all, our insecurity is not only a problem of law. The problem is not in the pendulum, which in fact was shattered in the House yesterday. The circus in the House took democracy back twenty years.
If we were trying to solve the problem of insecurity in the streets, we may have to re-examine the matter. Our security problems seem to be a reflection of the chaos of some of our institutions. Now security must begin in the House, the honourable House.
As we grow up as a country, we need to decide whose steps we want to follow: the bully and reckless teen, or the grumbling and peevish old man, the petulant woman who is always unfaithful. The possibilities are many. Whatever we decide today will refashion our future.
Let’s love this little beautiful Kenya. Again, let us pray for her leaders, her people, her peace and her unity this coming New Year.
