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Breaking the law to pass a bad
law
Sunday October 9, 2005
The Standard, Nairobi
By Ababu Namwamba
Three chilling revelations emerged
this past week: One, politicians in government will not hesitate
to distort the truth, rob the taxpayer, bribe, incite, coerce,
maim or incarcerate to pass that pretension of a constitution.
Two, the government is badly
cornered. B
ut instead of keeping cool and
devising the least fatal escape route, they are repeating that old
blunder that has historically consigned ill-fated regimes to the
four winds.
Three, it has finally dawned on the
Draft Constitution’s principal salesmen that their merchandise
is so awful, they must play unorthodox to sell — even if it
means sending the rule of law to the gutter. Behold, the theatre
of the absurd!
Scene I
Banana Republic vs Mwenje and
Another: This is one commando operation that would have turned
the Gestapo green with envy! In scenes characteristic of a police
state, a heavy police armada cage Embakasi MP David Mwenje and his
Makadara counterpart Reuben Ndolo in Parliament. A Hollywood-like
chase ensues, with a flotilla of cars in hot pursuit as the
legislators race to the Makadara Law Courts. The show picks pace
when, in unprecedented disregard for due process, Mwenje and Ndolo
are "arrested" right in court — after being bailed!
The plot thickens with a ping-pong
game as the two are held incommunicado and shifted from one police
station to another. The end is rather anticlimactic… the stars
are arraigned in court and bailed — again!
At the end of this fiasco, colossal
sums have been wasted to dramatise what should have been a routine
affair.
One useful lesson, though: This
government is suffering from acute paranoia. Since the supposed
"complainant" never filed a complaint, we can only
conclude that this was a mission to cow.
Before these fumbling antics become
the norm, Security Minister John Michuki and Police Commissioner
General Hussein must be told unequivocally that Kenya is no police
state. Bananas or oranges, Kenya is a democracy governed by the
rule of law.
Scene II
Kimunya forages in the Mau
Forest: In a horror show just months ago, Lands Minister Amos
Kimunya endorsed the most brutal eviction in Kenya since Muoroto.
Brazenly dismissing as "pieces of paper" the evictees’
title deeds, Kimunya led a government onslaught that saw men
shamed, women brutalised and children traumatised as homes were
razed, crops destroyed and lives trampled.
The Kipsigis and Ogiek peoples
inhabiting the picturesque Mau-Narok escarpment were left hungry,
cold and homeless. Then guess who rides into town? An orange
liberation brigade! And the government chest-thumping suddenly
wilts! By some miraculous stroke, land is now available to
resettle the "landless". Why was this land not sourced
first and these Kenyans resettled civilly before being turned into
refugees in their own country?
The "pieces of paper" are
now holy writ, re-issued at the "benevolence" of His
Excellency. How touching! Somebody tell me, how does this good
government make policy? Who decides Mau forest is a crucial water
catchment reservoir, and who reverses that? Who declares title
deeds not worth the paper they are printed on, and who revokes the
same? Who decrees 2.5 acres as the least land-holding size, and
who changes this? Take that land, good people, but neither buy the
lie nor forget the indignity of your eviction. You are receiving
what is yours by right. Before Kimunya mercilessly uprooted you
from your homes, you were not landless!
Scene III
Kibaki hunts in Amboseli:
This scene is rather "pumbavu", excuse me. It makes
nonsense of the law. Amboseli National Park is governed by the
Wildlife (Conservation and Management) Act, Chapter 376 of the
Laws of Kenya. Section 7 of this law clearly prescribes the
procedure for altering the legal character of a national park. A
60-day notice has to be published in the Kenya Gazette and one
national newspaper. In the absence of any objection, Parliament
must then approve the cessation motion.
But again, thanks to banana
paranoia, this well-defined legal regimen has been annulled.
Stunned by the orange posture of influential Maasai nationalist
and Cabinet Minister William ole Ntimama, the Kibaki
Administration is scampering to placate the proud Maa peoples by
offering the prized Amboseli to OlKejuado County Council.
But the President remains trapped
by the same Draft Constitution for which he so desperately seeks
Maa support. Section 80(3) of the Draft vests in the Central
Government authority over national parks. Since the constitution
is the superior law, OlKejuado will automatically lose Amboseli
when the Draft becomes law.
Scene IV
Kombo lets the dogs out: For
the only sitting MP who knows the pain of losing the seat in court
for electoral misconduct, this son of my people truly is daring.
The otherwise cautious Local
Government Minister committed a culpable act last week, for which
he must be called to account. In Kakamega, he misused public
resources outright by paying councillors allowances for attending
a purely political meeting with no connection to their statutory
mandate.
Then he proceeded to hoodwink them
by dangling a pay rise he well knows is fictional in the
country’s present fiscal state. At a time when councils are
panting under the weight of salary arrears, under-funding and
mediocre services, it is inexcusable for Kombo to waste public
resources on seducing support for a partisan agenda. For you
Councillors, remember this: "Cha mlevi huliwa na mgema".
Enjoy the loot but do not be fooled!
And Kombo, what was that about
journalists being attacked physically by your supporters — as
your security detail watched — after you had attacked them
verbally?
The big question is: If this
government can defile the rule of law so shamelessly, how can it
be trusted to midwife the birth of a new constitutional order?
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