On Miguna, Constitution has been overthrown

This past week has not been short of unnecessary and, in my view, juvenile drama.

After a series of moves aimed at rolling back the hard-won freedoms enshrined in our Constitution, our security organs finally arrested a person they considered a grave threat to the stability of our nation.

Instead of expeditiously arraigning him in court based on the reasons for arrest, they engaged the country on a wild-goose chase, flagrantly ignoring court orders and eventually putting the man on a flight to Canada.

Under pressure to explain why they broke the law and ignored court orders concerning the man, government spokesmen and ruling party apologists were all over social media indicating that there were valid reasons to “deport” the politician.

CITIZENSHIP

The commonest narrative was that while the man was born in Kenya and even attended the University of Nairobi for a while, he fled the country using the papers of a foreign state, and never reapplied for citizenship after the promulgation of the new Constitution.

It was further claimed that while he held a Kenyan passport and had served in government for several years as a public officer, his citizenship documents were fraudulently acquired and are, therefore, null and void, and he remains a foreign national until he applies to regain his citizenship.

For this reason, the Interior Cabinet Secretary issued deportation orders and the man was rushed to the airport and put on a plane while a judge and lawyers waited at the High Court for his court-ordered arraignment.

COURT ACTION
Arguments have ensued online and elsewhere over whether a citizen by birth can be stripped of his citizenship by the singular action of a minister, and whether he actually needs to reapply for citizenship having been born in Kenya.

However, since the famously litigious advocate has promised to sue all and sundry involved in his “abduction, illegal detention, and forced exile”, those issues are more properly canvassed in a court of law where the appropriate remedies may be sought and given.

What is lost in all these explanations, though, is the fact that government officials are admitting openly to defying the Judiciary and going about all the business around this man as judge, jury, and executioners.

They felt that the man did not deserve a fair hearing in our courts in order to establish the truth about his citizenship status.

POLICE RAID

Indeed, that was not even the crime he was meant to be charged with.

His house was broken into during his arrest after a magistrate was convinced that he was harbouring dangerous weapons in his house, none of which were produced after his arrest.

The charge sheet then indicated that his crime was that of being present and witnessing someone swearing an illegal oath, an act amounting to treason.

Government seems to have eventually abandoned this charge in favour of deporting the man and washing their hands off him.

More importantly, many people speaking for government or the ruling party have expressed their extreme aversion to the Judiciary, preferring extra-judicial actions that ultimately run afoul of the Bill of Rights in our Constitution.

STATE POWER

Effectively, therefore, the Constitution has been overthrown and it is unclear what the ruling standard is today.

The effect of this coup is that the Executive arm of government has expropriated all state power to itself, eliminating the intervention of the Judiciary as the interpreter of the law and arbiter between contending parties.

Interestingly, many legislators are cheering these moves, blissfully unaware that they are cheering themselves out of a job.

You see, a rogue Executive operating outside the law does not need a Legislature to write new laws or amend old ones. It doesn’t matter.

The Executive will just ignore the law and do what is convenient or pleasing to whoever may be in charge for the time being.

As we cheer the Executive for dealing a death blow to both the Judiciary and Legislature in one fell swoop, let us ask ourselves a fundamental question: When tomorrow you are arrested by the police for whatever reason, will you be sure of your destination?

Atwoli is Associate Professor and Dean, Moi University School of Medicine [email protected]