Even though I strongly support the war against Al-Shabaab – Somalia’s Taliban – I am nervous. Why?
Because war usually invites unintended consequences. It doesn’t matter whether the war is necessary, or even just. The fact is that war is an ugly and costly business.
First, you don’t know when a war is going to end. Nor do you know how it may change a country.
Look at how America’s war on terror has transformed the US. It has cannibalised America’s treasure and curtailed basic liberties.
My fear is that the Al-Shabaab war could be used to postpone the 2012 elections.
I can think of scenarios that could upend the constitutional edict to hold the next elections as by law required.
The Constitution is largely a “process” and “governance” document. It was a response to dictatorship.
That’s why it doesn’t pay much attention to situations where matters go terribly wrong.
For example, it doesn’t treat states of emergency or war – two catastrophic events – in satisfactory detail.
This is worrying. Article 132 (4) (d) gives the President the power to “declare a state of emergency” subject to Article 58.
But Article 58 isn’t illuminating – it doesn’t tell us which substantive rights or functions of government can, or would, be suspended in case of a state of emergency.
It largely addresses the “processes” of declaring and ending a state of emergency. It doesn’t say “what happens” during the state of emergency.
The Constitution is equally vague on what happens in a war situation. Article 132 (4) (e) provides that the President may, “with the approval of Parliament, declare war”.
Again, the Constitution is silent which of its provisions may be affected – or suspended – during a war.
Perhaps none. If so, the Constitution should’ve been explicit. Guesswork isn’t a good thing in such serious matters.
It’s true that Article 24 opens the door to limitations on the rights in the Bill of Rights.
But Article 25 spells out the rights for which no derogation, or limitation, is permitted under any circumstances.
But these are only the freedoms from torture and servitude and the rights to a fair trial and habeas corpus.
My reading of the Constitution tells me that any other rights or entitlements and processes can be derogated from, or limited, in a state of emergency or war.
Obviously, such limitations have to pass muster and the scrutiny of the courts and the legislature.
In effect, the three arms of government – either working in concert, or separately – may suspend any number of critical events required by the Constitution.
Here, context is everything. I submit that one event that is critical to a democratic society could fall victim to the Al-Shabaab war.
I am talking about the 2012 General Election, the one critical event without which the new constitutional dispensation cannot be properly launched. That’s a huge loophole.
My gut feeling is that Kenya will crush Al-Shabaab, and that my dark fears won’t come to pass. But wishful thinking and thoughtful wishing are two different things. I prefer the latter.
That’s why in a war situation you prepare for the worst, and hope for the best. In a best case scenario, Kenya would crush and mop up Al-Shabaab in a matter of months.
There would be minimal loss of Kenyan troops and Somali civilians, but massive casualties of Al-Shabaab extremists.
But this could be wishful thinking. Suppose – just suppose – the Al-Shabaab militants inflict heavy casualties on Kenyan troops and hit civilian targets inside Kenya?
I believe that heavy civilian casualties in Kenya would grip the country with fear and panic.
It would be the obligation of the government to “suspend” various provisions of the Constitution through the declaration of a state of emergency.
Mind you – I am not advocating an “illegal” suspension of parts of the Constitution. It would be done “legally” by the President in concert with the legislature and a nod from the Judiciary.
I am sure some litigious citizens would go to court, but they’d lose their challenges. Context would be everything – Kenya under attack at home.
I know this isn’t something most Kenyans have thought about, but I urge you to prepare in case matters come to this.
A democratic election requires a certain level of civil peace, security and stability.
Candidates and the general public must be able to move freely and associate without fear of attacks from Al-Shabaab.
We all remember, for example, the fear that gripped the country when a grenade was launched at a “No Camp” rally during the referendum campaigns last year.
Imagine that scenario repeated many times over throughout the country. I don’t believe even the presence of Kenyan police and security forces would be enough to restore sufficient confidence in the public.
There would be a fever over the land and a free and fair election would be impossible. That’s why a postponement of the elections isn’t fantasy.
Threat from terrorists
I know one school of thought says that changing your lifestyle – or important events – under threat from terrorists is caving to them. May be so.
But one can also be pig-headed and risk everything on pride and hubris. That’s what happened to America under former President George W. Bush and VP Dick Cheney. They saw extremists everywhere.
That’s why they took America to an unnecessary war against Iraq. But Kenya’s war against Al-Shabaab is necessary. That’s why Kenya may have to postpone elections if necessary.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC