This was not a good week for Kenya. In open defiance of court orders, television stations remained off-air and when a couple of them finally came back on, they did so amidst rumours of restrictive agreements with the state.
Also Miguna Miguna, of the opposition National Super Alliance remained in detention for a shocking five days before being produced in court outside Nairobi, only to be unconstitutionally and illegally stripped of his Kenyan citizenship and deported to Canada, his supposed “country of origin.”
No less than the Chief Justice — in an unprecedented statement — has had to go public to remind the state that: “Compliance with court orders is not an option for any individual or institution. Neither is it a favour to be doled out to the Judiciary. Rather, it is a crucial matter of constitutional and civic obligation.”
He also had to remind the state that there are numerous ways to constitutionally and legally challenge court orders it disagrees with — as all court decisions are subject to review or appeal, to be varied or set aside. And by his statement, he was also sending the signal to the entire Judiciary that “judges and magistrates are at liberty to invoke the legal avenues available to enforce those orders.”
The Judiciary heard him and granted anticipatory bail to journalists at risk of arrest for doing their job; to opposition organisers of the mock swearing-in; by finding the Non-Governmental Organisations Co-ordination Board to have illegally deregistered the Kenya Human Rights Commission and ordered restitution of Ksh2 million ($19,960) to the same.
What the state seems to have forgotten is that the days of contempt for rule of law, and contempt for the separation of powers are gone.
If parliament was the main check on the Executive during the dying days of the Moi dictatorship, the Judiciary seems set to be the main check on the Executive during this emerging Kenyatta II dictatorship. Not because the Judiciary has asked for or set out to play this role. But because the state’s own outrageous actions are forcing it to play this role.
For that we must be grateful. From that, we must ourselves draw courage to refuse to comply, especially in the face of fear-mongering and intimidation of even the private sector.
For example, a hotel in Nairobi refused to host a press conference of the International Commission of Jurists-Kenya on the grounds that the ICJ-Kenya is “political.” Shame on the hotel.
Or the Nation Media Group for publishing the false death announcement of questionable opposition financier and erstwhile state fixer, Jimi Wanjigi. The NMG has since publicly and privately apologised, and referred the matter to the police, but the damage has been done.
But the public has not succumbed. The anger on social media is palpable. What the state forgets is that we have a generation of citizens who’ve come of age in the post-transition period, accustomed to their freedoms and rights. They are not going to take repression lying down.
The number of ordinary Kenyans who turned up at the #NotInMyCountryKE civil society public action this past Monday attests to this.
The state is turning journalists, civil society and opposition politicians into martyrs. Martyrs have historically been the downfall of no small number of states.
If that obvious reasoning continues to escape the state, at least the Judiciary and the once complacent public is standing firm. A “benevolent dictatorship?” Not in our country Kenya. The state should sober up. Literally.
L. Muthoni Wanyeki is the Africa director of the Open Society Foundations. [email protected]