It is opined by some in Kenya that the regime of former President Moi hardly broke constitutional law. For the most part, it rather, applying provisos and rigid compartmentalised thinking, bended and stretched it absurdly. There may be some truth to this. Previously on this platform, I opined that Kenyan society is prone to absolutes, in that instance, equating legitimate use of force with its disproportionate immoral use in “law enforcement”. It would seem that the legal fraternity too suffers its own peculiar version of this Kenyan tendency to be rigid.
At a conference on transformative constitutionalism, Prof. Ambreena Manji noted that for Kenya to realise the aims of its visionary transformative constitution, we needed a certain conversion of the soul, not just the mind, of the Kenyan jurist. At this same conference, the Chief Justice of Kenya, Dr Willy Mutunga lamented the old judiciary’s reliance of “mechanistic jurisprudence”. Such judicial policy led to the dismissal of the late Wangari Maathai’s (later Nobel Peace Prize Laureate) 1989 case against government plans to build a 60 storey building on Nairobi’s Uhuru Park as she did not show what injury would befall her were the environment to be spoilt. In 1989 too, the High Court held that the Bill of Rights could not be enforced as the Chief Justice had not issued enforcement rules as obligated by the Constitution. In 1993, again, presidential candidate, Kenneth Matiba’s election petition ground to a halt as he was unable to serve the sitting president with suit papers personally.
When the World Health Organisation (WHO) declared “a public health emergency of international concern” in the three fragile West African states of Guinea, Liberia and Sierra Leone, the walls fast closed on them and their peoples. Flight bans, citizen entry bans and ripple effects on trade have been announced by African countries, as well as globally. So severe have been the restrictions that vital energy and food supplies have dwindled, with riots breaking out in some areas. The affected countries have pleaded with “the world” to not inflict collective punishment on their populations, and indeed future.
These real world events have grounding in probably the most innocuously titled yet powerful treaty in the world. Nope, not the UN Charter, not the Geneva or Vienna Conventions… the International Health Regulations (IHR 2005). Usually, ‘regulations’ is legalese for subsidiary legislation. But these regulations treat probably the most incendiary issues in human society: infectious diseases and legality, if not morality of mitigating actions.
The IHR’s aim to provide maximum protection from the international spread of infectious diseases while causing minimal harm to global travel and commerce. It originates from the 1892 International Sanitary Convention that sought to control the spread of cholera in the Suez Canal, providing for coercive ship inspections and quarantines.
It may well be said that the Achilles-like duality of IHR, its true power and weakness, lies not in legal theory but sheer human behaviour. Infectious diseases are frightening. They compound the unknown and bring out the worst elements of our self-preservation instinct. Prior to the 2005 revision, states like India and Peru sat on critical information about disease outbreaks to avoid the punishing reactions of other states. Given the treatment of Guinea, Sierra Leone, Liberia, one wonders what exactly has changed in the real world.
The whole world watched with horror the events in Marikana, South Africa and even worse, the manner in which the police defended their actions ultimately including the arrest and charging of some of the striking mine workers.
South Africa is not alone in these twisted perceptions of the morality of state monopoly of violence. Kenya is witnessing the re-awakening of a state-centric oxymoronic violent morality. In the last few weeks, after a High Court decision declared illegal the proscription of the Mombasa Republican Council (MRC), this separatist movement, misguidedly revived and threatened to disrupt national school leaving exams among other separatist acts. A police crackdown ensued, culminating on 15 October 2012 with the arrest of 38 persons at the house of the MRC Chairman, Omar Mwamnuadzi. Two people were killed, a gun and 15 rounds of ammunition recovered together with several petrol bombs, including one that was hurled at the officers conducting the raid.