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The status quo in a country can be the past, the present, and the future. So is the resistance to the status quo. Indeed, this is the essence of the revolutionary clarion call; the struggle continues. And the optimistic rejoinder that victory is certain. The use of colonial and neocolonial laws in Kenya to stop the people’s march to liberation is a glaring example of this struggle. The Kenya Constitution, 2010, dealt with this history by making sure it decreed such a status quo to be unsustainable and unacceptable. Colonial and neocolonial legislation had, in its implementation, to be aligned with the Constitution and never to disengage from the word and spirit of that Constitution. Implementing a Constitution that has such a vision is in itself a struggle in which political demands are made by invoking the Constitution, notwithstanding the resistance by the status quo. The application of Sections 4 and 5 of the Prevention of Terrorism Act in the ongoing struggles in Kenya shows clearly that the ruling class in Kenya finds the implementation of the Constitution inconvenient.
A Brief Rundown of History of Struggles against Repressive Legislation since Independence
Abdillatif Abdalla, one of our revolutionary poets and Professors of Kiswahili, was arrested on 15 December 1968 for writing a leaflet titled Kenya Twendapi/Where is Kenya headed[politically]? He was charged with sedition and incitement. Found guilty, he was sentenced on 19 March 1969 to 18 months in jail. This sentence was doubled by a judge of the High Court, and he served the sentence without the usual remission of a third of the sentence. He was also kept in solitary confinement for the entire sentence of three years. His trials and tribulations are captured in his publication Sauti ya Dhiki. Abdalla’s neocolonial sedition and incitement charges would today be unconstitutional under our Bill of Rights. This is on the assumption that our investigators, prosecutors, judicial officers, and judges interpret the Constitution to make sure colonial and neocolonial legislation is aligned with the Constitution.
In December 1977, the late Professor Ngugi wa Thiong’o was arrested and subsequently detained on 15 January 1978. He was released on 12 December 1978. His detention, under a colonial and neocolonial legislation, aptly titled the Preservation of the Public Order Act, was in response to his revolutionary writings that the government of Jomo Kenyatta did not deem to be in the exercise of his academic freedom. The government was particularly incensed when Wa Thiong’o and his co-writer, Wa Mirii, produced at Kamiriithu, Limuru, a play they wrote in the Gikuyu language. The actors and actresses were peasants and workers in Limuru. Limuru also had, and still has, a shoe factory where some of the cast worked. The Constitution would not countenance such legislation today.
By the time Jomo Kenyatta died on 22 August 1978, the only site of struggle against his dictatorship was the University of Nairobi with its radical faculty and students. In 1982, lecturers from both University of Nairobi and its constituent college, Kenyatta college, were arrested and either jailed or detained. The lecturers were part of the leadership of the University Staff Union that was a site of struggle by an underground movement called December 12th Movement (DTM). Had Wa Thiong’o not fled into exile he would have been detained for the second time. These lecturers were fighting for their academic freedom, freedom of opinion, thought, and conscience that now the Constitution protects, defends, and upholds.
In 1982, David Onyango Oloo, a student at the University of Nairobi wrote a poem after the failed 1982 military coup. The poem was revolutionary and an exercise of his academic freedom. He was arrested, tried, and jailed for six years. More students from the same University were jailed for “celebrating the coup”. It was in the 1980s, after the failed coup attempt, that another underground movement of mainly students, MWAKENYA, was formed. The state got wind of it and arrests followed. Some of the members of this movement were teachers. The Movement had members among Kenyans in exile. Article 38 of the Constitution decrees our political rights. Kenyans can form, participate in forming movements and political parties and campaign for a political party or cause. The Constitution allows Kenyans to campaign for any causes above ground without fear of prosecution.
The 1990s saw the end of the KANU-MOI dictatorship. Multi-partyism was decreed with elections taking place in 1992. Resistance and activism were both above ground. Repealing dictatorial legislation, the Preservation of the Public Security Act being one of them, was successful as part of minimal reforms. The agitation for a new democratic constitution to repeal the colonial and neocolonial constitutions was undertaken from 1998. The Constitution of Kenya, 2010 was promulgated on 27 August 2010. This Constitution was praised as transformative because through its provisions, citizens were able to create sites of struggle to dismantle the status quo and transition to a radical social transformation. The struggle to implement the Constitution and to rid the country of its status quo continues. The parallel strategies to do this have been by direct political actions as well as public interest litigation that has its basis in social movements.
The Prosecution of Boniface Mwangi and Other Comrades
Boniface Mwangi is a courageous freedom fighter who pioneered mass action through social media in Kenya. As a courageous photo-journalist, he exposed to Kenyans the consequences of the civil strife that took place in 2007-8 in an exhibition named Kenya Burning. The brutality of that strife mobilized Mwangi to take up activism seriously and sought to breathe life into the provisions of the Constitution that undergirded social transformation. Article 37 of the Constitution has been used to maintain mass action against the elite. Colonial and neocolonial legislation is being used to subvert the citizens’ rights.
Article 31 protects the privacy of Kenyans. No citizen’s person, home or property should be searched. No citizen’s possessions should be seized. The privacy of the citizen’s communications should never be infringed. The arrest of Boniface Mwangi last week violated his rights under Article 31. The police announced they will charge him with terrorism. They ended up charging him with possession of ammunition without authorization. The ammunition was an exploded tear gas canister and a shell from a bullet that had been fired. Mwangi had kept both items for the last three years as trophies from his activism. Both are not ammunition by any stretch of legal imagination.
Protests are even exempted from the Prevention of Terrorism Act. Even if they were not so exempted, mass action, including demonstrations, petitions, and marches are decreed under Article 37 of the Constitution subject to them being peaceful and citizens involved being unarmed. In the many mass actions I have participated in since the 1970s, the breach of peace happened when the police arrived with their teargas, water cannons, rubber, and live bullets. Even after our progressive Bill of Rights in our Constitution was promulgated, the elite still finds the colonial and neocolonial repressive legislation useful for their terroristic activities.
There are other comrades who have been charged without the state paying any attention to the provisions of the Constitution. Both the Offices of the Attorney General and the Director of Public Prosecutions seem to have become appendages of the Office of the Director of Criminal Investigations. This is very sad, given that Articles 156 and 157 respectively give the two offices independence and integrity to act in the national interest and in the protection of the rights of citizens.
The Role of the State
The role of the state is clear. A state that cannot protect both the lives of its citizens and their rights to property is illegitimate. The Ruto regime has abducted, murdered, arrested, and maliciously prosecuted young people. The state has also allowed what the media calls “goons and criminals” to assist the police in violating the rights of citizens. The history of Kenya is replete with police informers and the militia operated by politicians joining the police in attacking demonstrators, destroying property, and stealing goods from businesses. The aim has always been to blame the demonstrators who march peacefully and unarmed. The Kenyan state has refused to implement the Constitution and seeks to overthrow it at every turn.
The Role of the Judiciary
The Judiciary is at a crossroads. It either defends, upholds, and protects the rights of citizens, and thereby becomes a temple of justice where citizens can run for protection; or it becomes the appendage of the state, contrary to the word and spirit of the Constitution. Some judicial officers have been imposing onerous terms on bail applications, giving the perception that they are second-guessing the state. The vision of the Constitution is that courts are People’s Courts with delegated sovereign power from the citizens. If the Judiciary fails to protect the rights of citizens, its delegated sovereign power will be withdrawn. Calls to occupy certain courts have been heard. Let the Judiciary keep its eyes on the crossroads.
The Role of the International Community
What we call the international community is a euphemism for foreign interests. Pontificating about constitutionalism, democracy, and the rule of law is common within this community. We are yet to see an international community that respects our Constitution when it comes to the rights decreed by the Constitution. In most trade deals, contracts, and investments, the international community rarely respects our Constitution, particularly the participation of the citizens in such activities. So, when we hear this pontification, we only see domination, exploitation, oppression, perfidy, hypocrisy, and double standards. The 21st Century should be one of global solidarities among the global citizens. The international community should pay attention to the emerging consciousness of global citizens that identifies who the collective enemies of the global citizens on the planet are. It is up to the international community to convince Kenyans that it is not complicit in the violations of the rights of Kenyans.
Is the Ongoing Revolution by the Gen Z and Millennials a Terrorist Act?
The political demands in this revolution are anchored in the Supreme Law of the Land. The mass action that is constitutional cannot, in law, be a terrorist act. The criminal acts by the state and its hired so-called goons constitute terrorist acts against the citizens. Abductions, tortures, illegal searches, extra-judicial killings, disappearances, arrests, and malicious prosecutions, denials of rights that are constitutional, are all unconstitutional acts against the citizens. Since all sovereign power belongs to the people of Kenya, the protection, the defence, and the upholding of this sovereign power by constitutional means cannot, in law, be acts of terrorism.
So, Who is a Terrorist in Kenya?
The answer to be discerned from this write-up is definitely not the citizens but the Kenyan state and its ruling elite that the international community invariably treats both with kid gloves and is complicit in its violations of the rights of Kenyans.
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This article was first published by Pambazuka News
