Human Rights Abuses under the New Constitution

Al Jazeera aired the highly talked about, ‘Inside Kenya’s Death Squads’ feature this week. Straight off the Ross Kemp rule book that one, from the special effects, the grotesqueness, and the human tragedies imbued throughout torturous images of cold blood murder by Kenyan state agents; everything was the same. One could almost certainly see the Ross Kemp narrate his profile of the Mungiki and the violent reprisal from the government some years back. A fact that escapes mention is that Ross Kemp shot his documentary a few years before Kenya promulgated the new constitution. The Al Jazeera feature was shot in a new Kenya, a new republic, anchored on the rule of law and constitutionalism. Why? Why does such wanton extra-judicial killings happen in a country that is trying to redeem its image, to appear like a bastion of virtue in and the rule of law in a continent not known for the same? Why didn’t the cold blood murder of two robbers on Kimathi Street a few days ago by police attract the ire of the public like the Al Jazeera feature did? Weren’t all these murders excesses by law enforcement officers? Why the selective application of public sympathy? Is the extra-judicial murder of a suspected terrorist any different from the extra-judicial killing of a suspected robber?

Although Kenya changed its constitution in 2010, a few things have remained the same, one of them being the total collapse of the criminal justice system. The police usually justify their street executions with the paralysis that is the Kenyan justice system. One could say they have a case, the justice and law sector has never been stellar in Kenya. Kenyan courts more often than not have been accused of engendering injustice rather than justice, but more often than not it is a culture of impunity that permeated the police as an institution since colonial times that is to blame for all this street side mayhem.  Sad as it is, this culture seems not have been adequately addressed by the constitution.

Institutions, particularly the ones that deal with law and order, seem not to have gained the affinity for the rule of law that the rest of us did when the new constitution came into being. What be the problem? The constitutional is unequivocal in its reverence for human rights, and it is ironical that the police and other state agents treat Kenyan citizens with imperious contempt and without due regard to the Constitution.

Chapter four of our constitution “Bill of Rights” defines the rights and freedoms of Kenyans, the chapter defines the rights and freedoms in such explicit terms that there is absolutely no chance of misinterpretation, it provides the basis for limitation of powers for state organs. Article 19 (3) a states that “the rights to and freedoms belong to everyone and are not granted by the state.” These rights and freedoms are innate, are universal and ensue from natural law, these rights are natural and predate the state. In other words, state organs are not supposed to deny individuals their rights and freedoms in a discretionary and arbitrary manner the state cannot also administer rights selectively, choosing which ones to administer which ones to ignore. The limitations of rights and freedoms of individuals are only limited by the Constitution itself, and they are limited only insofar as those rights are a threat to the rights and freedoms of others. In other words, there is a presumption of freedom and liberty in our constitution, an individual is free to act or not act as he/she pleases as long as the action or inaction does not interfere with the rights and freedoms of others. For example, an individual cannot kill another because the ‘right to life’ of that other is guaranteed by the constitution. Something that almost escapes mention is that the constitution grants ‘rights and freedoms’ to individuals not groups of people. This is important, and it does not leave the lacuna which would have allowed groups to act on or hold the rights of individuals in trust. This clause also ensures that the ‘tyranny of the majority’ is not a determining factor for rights and freedoms. Civil groups can have their opinion, but these opinions do not provide the basis for constricting individual freedom. The recent stripping of women on the guise of poor dressing by Neanderthal men comes to mind. These men cannot decide how a woman dresses, they cannot argue that certain dress codes by women abuse their rights. If they do so, they burden of proving that that their rights have been abused is on them, not on the poor women and they should prove that in court.  This idea of marrying rights and freedoms with the individual is built around the ‘libertarian maxim’ that individuals know what’s best for them.

Part of the blame for this squarely lies with the citizens they are ignorant and seem not know their rights and even if they do, they suck at demanding for them. The constitution is very clear, and the presumption of innocence for accused persons is not mere rhetoric. The rights of the accused persons and other persons in the country are well enumerated in Article 50 (2) of the Constitution stipulates that “every accused person has the right to a fair trial, which includes the right to be proved innocent until the contrary is proved.” This does not leave the police with a caveat to execute supposed criminals in the streets. Innocent people, at times caught in the cross-fire, suffer because the state has had a particularly bad record at prosecuting crime. There are numerous cases of the innocent wallowing in jail and guilty walking free.

Abuse of rights and freedoms start when the police are allowed to get away with small abuses. For example, citizens do not know that they do have the freedom from arbitrary search, in fact, the Constitution assumes that the individuals own their property, and all property is protected by the constitution. The police carry out arbitrary searches with reckless abandon.


In Kenya we do not have people who stand on the pedestals of virtue, we do not have people who stand when the constitutional rights of others are abused. Now is the time we need persons to instigate a virtuous call out for the abuse of rights and freedoms to stop immediately.