Civil liberties and the survival of the state


Despots have often misused national security by various despots, with a view to suppressing civil liberties to cover up for crimes committed against citizens, leading to situations like apartheid or kleptocratic misrule.

In such countries, the doctrine of separation of powers and the independence of the relevant governing agencies such as the Judiciary is simply not viable. In the circumstances, does the independence of the Judiciary create a constitutional grounding that it leads to a Judiciary adversely independent of the Executive?

There are human rights theorists who wish to argue for an incontrovertible yes. On the other hand, there are realists who aver that independent judiciaries operate in a real world and, therefore, concerns about ideological purity should never supersede the reality of national security. Is this conflict new?

After September 11, 2001, the global scene was treated to a new reality: Definition of international law became a preserve of the security of the United States and her allies. Subsequently, historians are still to figure out what to make of Iraq, Libya and Syria after preemptive activities by the Coalition of the Willing against the Axis of Evil. The fact that pre-emptive action to defend the Western democracies superseded the ideologies of national and international law is not in contention.

If these wars have served any purpose, it is to demonstrate the seriousness with which the West takes their present and future stability: It is a goal for which no price is too big to pay. Where then does this leave the doctrine of the rule of law? Does it remain democracy’s constant north? Is a country’s national security and stability an absolute obligation?

National instability is said to be the likelihood that a government may be overthrown by unconstitutional or violent means, or when governance systems are significantly crippled by politically motivated violent extremism. The result is the disruption of law and order to an extent the citizenry cannot pursue their social, economic and political activities freely. In this situation, governments are not able to preserve their monopoly to use of coercive force to guarantee citizens their human rights and fundamental freedoms within the bounds of civilized society.

For several hours after September 11, 2001, the US found itself in this situation — an experience that fundamentally changed the international law landscape. For one long month in 2007-08, Kenya underwent the same experience as hundreds were killed and thousands displaced. Do we have a lesson to learn from the US?

Since 2001, the Executive in the US has declared one war after the other against independent states with acquiescence from Congress. Not even their judiciary raised a finger in the face of the unprecedented Guantanamo Bay detentions without trial!

Writing in the Berkeley Journal of International Law on this subject, Winston Nagan, a Professor of Law at the University of Florida, observes that September 11 triggered an intuitive reaction in the US that the normal rules of restraint embodied in international law might no longer be relevant to the safety and vital security interests of the United States. This changed the national and international law landscape. Referring to times of national crisis, William Rehnquist (former Chief Justice of the US) averred, “It is neither desirable nor is it remotely likely that civil liberty will occupy as favoured a position in wartime as it does in peacetime, … The laws will thus not be silent …, but they will speak with a somewhat different voice”.

Nagan explores the constitutional law position in terms of internal actions a state might take to defend national security interests and fully appreciates that executive authority may find itself seeking to circumvent domestic civil liberties to more effectively defend national stability. Nagan stresses that administration of the law must be committed to a principle of realism, while resolutely affirming the invocation of national security doctrines, as far as reason permits, should be consistent with the constitutional foundations of the state. Indeed, the safety of the state is the most compelling objective of politics and law. Using this pragmatic approach, the question remains, is there a docket of jurisprudence our Judiciary could have missed?

In Kenya, we operate in a landscape where instability lurks in a volcano of political ambition fueled by negative ethnicity and extreme poverty. Going by their known CVs, the dying ambition of many a politician is not the welfare of citizens but access to public funds for which the law is a by the way. Should the Judiciary, therefore. revisit their jurisprudence where the economy, national security and political stability of Kenya are concerned?

Granted it is not the duty of the courts to provide security, combat political violence, tax evasion, economic sabotage or prevent terrorism, it is a lonely responsibility for which the Executive can never and must never entertain any excuses. But truth be told: This becomes unnecessarily complicated when we have judicial officers who believe professional independence is when the Bill of Rights applies in exactly the same manner between a person viciously mobilising for communal violence and a suspect of chicken theft. In many jurisdictions, courts take keen interest in matters of public interest such as fraud and even insist on deadlines for production of evidence in court. In Kenya, the courts assert their independence by giving the suspect relief by way of injunctions against investigations and prosecution.

As to whether our Judiciary should be independent, there is absolutely no doubt. The question that lingers — and they need to ponder — is why in other jurisdictions, it is the courts that criminals dread while in Kenya, for countless perpetrators of various criminal acts, our courts are the place to be.

It is my view that Kenyans passed the 2010 Constitution to grant themselves a better quality of life through predictable social stability, faster economic progress and security, and this should seize every honest public servants’ Constant North.

First Published by the Star

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