Oh, God, some dizzy NGO judge has gone and done it, was my initial,
knee-jerk reaction to the High Court ruling lifting the ban on the
Mombasa Republican Council.
But when I read the ruling by judges Mwera, Kasango and Tuiyot, I realised I couldn’t have been more wrong.
Actually,
not only was it a considered piece of legal work, but it was
politically clever too. It demonstrated the difference between the
judges and the rest of us.
While we are operating in the old
constitution mode, the judges have made the transition to the new
Constitution and are enforcing it with diligence.
Reading the
judgment, it occurred to me that the State had a spectacularly
incompetent case. God knows I am no lawyer, but the State case seems to
have consisted of two affidavits and a clutch of newspaper cuttings.
Perhaps the Law Office is confusing the High Court with the ICC!
The law says that if you are going to take away somebody’s rights, then the State has to prove that such a cause is necessary.
In
short, the government said it had reports from the Kenya Police and the
National Security Intelligence Service showing that the Mombasa
Republican Council is allied to the Republican Revolutionary Council, a
violent, secessionist body. The government did not find it fit to show
the judges these reports.
Instead, it had newspaper cuttings in
which MRC was denying that it was a violent criminal group. It also had
charge sheets for MRC members facing reja reja cases which were filed
well after MRC had gone to court to challenge its ban.
To me, it
appeared to be disrespect for the court, based on the wrong assumption
that because MRC was challenging the integrity of the Republic, then the
courts surely could not rule in its favour. Hence more work was not
done to persuade the court.
But the masterstroke in the whole
issue is the burden the court placed on MRC. The secessionist group went
to court, not as a bloodthirsty sectarian, upcountry-hating gang, but
by pretending it is a law-abiding group with a political agenda.
So
the court provided it with guidelines which are now case law. First,
the Constitution has no provision for secession. If you want to create
your own Bantustan, you need to change the Constitution, for which you
will need a referendum in which we all vote. There is no alternative. If
it resorts to violence, then it should expect no protection from the
court.
Secondly, since the MRC says it is a group with a political
proposal, then it must have some formal shape, such as being registered
as a political party.
But if the MRC wishes to be registered, if
it wishes to sup with the elders, it must wash its hands. In other
words, MRC cannot continue existing as an amorphous group, secretly
beating the drums of war against upcountry people.
It must seek
registration as a political organisation and in doing so, it must obey
the law. MRC sought the protection of the law; now it is being
challenged to operate within the law.
Thirdly, the judges said
“yes, agitation for secession is a legitimate democratic discourse, but
it has to be done within the rules”.
MRC can go and debate and make the case for secession so long as it does not engage in propaganda for war.
So
it cannot inflame passions of the people to take up arms. It cannot
incite the people to violence, irrespective of whatever injury they are
supposed to have suffered. It cannot engage in hate speech, and it
cannot advocate hatred, whether against the government or against other
Kenyans.
In other words, MRC sought the protection of the courts,
the courts granted it, but it must now conduct itself as a civilised
citizen of the Republic of Kenya. The court was quite clear that if it
doesn’t, the government has every right and freedom to ban it yet again.
Finally,
I think the message to the government is that there is some heavy
lifting to be done. Even if you know that someone is engaged in
wrongdoing, that knowledge is not enough for you to take the decision to
limit his or her freedoms; you have to convince a court of law.
The
secessionist agenda will be defeated by listening to the people,
addressing their needs and winning them over. It’s harder than gazetting
a ban, but that’s the law.
If I were MRC, I am not sure I would be celebrating. But then, I am not genius like them.