If the courts are working, nothing can go wrong

Wednesday March 18 2020

What a sharp and sad contrast. On February 6, at the same time, two deportations took place. Miguna Miguna was flown to Canada and Elon Musk’s Tesla roadster was flown to Mars in a 90-million-dollar demo mission.

Musk, a South African-born, North American-trained engineer, has pioneered four amazing corporations. His first big success was PayPal, which he sold for more than a billion dollars.

Musk then set his goal on making a huge positive impact on five key areas: sustainable energy, the internet, making life multi-planetary (by extending life beyond Earth), artificial intelligence and rewriting human genetics. He founded Tesla, SpaceX, SolarCity and The Boring Company.

On Tuesday, February 6, at 10:45pm (EAT), SpaceX announced: “Falcon Heavy successfully lifted off from Launch Complex 39A at Kennedy Space Center in Florida.”

Falcon Heavy is the most powerful reusable rocket in the world by a factor of two. It has the ability to lift into orbit a mass greater than a Boeing 737 jetliner loaded with passengers, crew, luggage and fuel.


Jackie Wattles explains that test flights typically have a dummy payload, such as a big hunk of metal, so that nothing important or expensive is damaged if the rocket blows up. But Musk decided to offer up his personal Tesla roadster.

What a sharp contrast. A roadster to Mars and Miguna to Canada. This marks the difference between forward-looking visionary entrepreneurs and backward-looking government officials.

While Musk aims to force peoples and governments to think bigger and higher; a good number of African politicians are stuck in forcing peoples to think lower, dumbing divergence and braking rules.

While entrepreneurs focus their gaze on the horizon of progress and change, some of our leaders appear to look at the tip of their noses; the gains of immediate power.

What a sharp and sad contrast. While Musk is thinking of clean energy, artificial intelligence and conquering the universe, the government seems hell-bent on creating dissention, creating an artificial opposition and conquering every single economic space within Kenya.


Miguna’s last declaration, “I shall return”, reminded me of Skeletor, the famous He-Man’s eternal enemy. In our childhood days, many of us watched He-Man. Skeletor was his anti-hero, and he always shouted at the end of each episode, “He-Man, your new power is mightier for now, but I shall return with my own new power!”

Skeletor had a point. He always returned; he was a constant menace. Power is like that, it is always reversible, yesterday’s power is today’s weakness and today’s weakness is tomorrow’s power. This is the unavoidable dynamic of democracy.

In 1990, Deputy Speaker Kalonzo Musyoka introduced a motion in Parliament seeking to ban the Nation from reporting house proceedings. He accused the paper of being “subversive and tribalistic”. Today, the former vice-president is logically complaining about the unconstitutional and nonprocedural media gag order.

Democracy without opposition is a contradiction. A democratic president must have someone who says, “I don’t like your ways, I don’t like how you do it, I don’t like you”. This is part of democracy and the drafters of the Constitution had this in mind, for this is essential for democracy to function.


Perhaps they didn't foresee how difficult it would be for most of us in Kenya to learn to be measured. Our vitriolic hatred and constant insults between government and opposition, and now between counties, is the worrying sign of a decaying society.

Our political environment is poisonously polarised and anything seems to be allowed to gain some political mileage. This is not sustainable and we are already testing the deadly consequences of such behaviour.

Freedom of expression is not an excuse for lack of restraint… lack of manners and respect. But power is also not an excuse for breaking the law and using the Constitution as tissue to clean the mess we have created.

When the opposition uses unrestrained language, they lose ground, strength and strategic position. Their complaints stop being intellectual; their strategy is warped and their speech becomes repetitive and exhausting.


True opposition should be constructive, clean, lean and appealing to the majority for that is the only way to seize power.

When a government is unrestrained in its behaviour, it becomes vindictive, unreasonable, impulsive and abusive.

If Miguna used unrestrained and abusive language, there are courts of law where he should have been charged and tried. If Miguna lied about his citizenship, due process should have been followed. Word went around saying that it looked as if Miguna had been arrested by the Ministry of Tourism. He was driven from Nairobi to Laikipia, then to Kajiado, then to JKIA and then put on a plane to Amsterdam.

The clumsy deportation flouted all court orders. Investigations commenced, progressed and were concluded in less than 24 hours. As Valery Wabungo told me, “I wish the same efficiency had been shown in the Chris Msando, George Thuo and Jacob Juma cases.” She has a point.

The process disrespected court orders and basic rights clearly stated in the Constitution. This is an extremely worrying trend, also for government officials who will not be in power forever, and one day may see the law being manipulated against themselves. Abuse of power is an awful boomerang.


Sadly, in many African countries there is no sufficient respect for the rule of law. Only 12 percent of the recommendations of the African Commission on Human and Peoples’ Rights have been implemented since it started its operations. This percentage is even lower for the African Court on Human and Peoples’ Rights. As an example, its only case against Kenya, on the Ogiek rights, is yet to be enforced.

Shahzad Raza narrates that when the Germans were bombing London, Prime Minister Winston Churchill was briefed on the casualties and economic collapse. He asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.”

Churchill was a successful politician who left a lasting legacy. He and his government had a deep respect for the rule of law. May this be food for thought.

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