The price of a humane society is vigilance on human rights

By: Ali A. Mazrui
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[ Posted On: 2008-07-17 ]

Although President Kibaki's first term ended disastrously, this should not detract us from its positive aspects. After all, 'the condition upon which God hath given liberty to man is eternal vigilance'.

Similarly, we should affirm that 'the price of a humane society is eternal vigilance in defence of human rights'.

Key to all civil liberties is the freedom to point out human rights violations. Kibaki's administration accepted the Kenya National Commission on Human Rights (KNCHR) on the basis of that foundation. Its annual reports on the state of human rights in Kenya have been indispensable for evaluation of national performance.

Open Society

Kenya during Kibaki's first term, administration was more of an open society than it had been since independence. Arbitrary detentions without trial seemed to have receded into history.

Apart from periodic police harassment and indiscretions by the First Lady, Kenyan newspapers were less inhibited than they had been since independence. Corruption was frankly debated both in print and the electronic media. New radio stations mushroomed and private television stations launched programmes that were hitherto taboo.

While party wrangles and personality clashes among politicians were often irritating, such disputes were basically symptoms of democracy at work. Parliament once again became a debating chamber.

New Constitution

Crippling debates did take place about a new Kenya constitution. After huge expenditure in resources and man-hours, the Bomas Constitutional Review process eventually ground to a standstill with bitter recriminations. Important civil liberties and human rights were still at stake in the constitutional stalemate. The most cost-effective resolution of the disputes under Kibaki's second term could involve the following stages:

I: Parliament review the Bomas draft and votes up and down on the entire document. The new post of Prime Minister would be crucial.

II: If Parliament approves the original draft by a two-third majority, the Constitution should go into effect prior to the 2012 general election.

III: If the document falls short of Parliamentary approval, it should go to a popular referendum for a YES or NO vote. A simple majority would decide the issue.

IV: If the people approve the Constitution, it should go into effect prior to the 2012 general election.

V: If the people say NO to the Bomas draft, the contentious issues should return to Parliament to be addressed individually, each requiring a two-thirds majority for approval.

The newly amended version should become the new Constitution of Kenya, preferably before the next general election in 2012.

Law abiding citizens

Human rights are not just for law-abiding citizens and the best among the wananchi. Human rights are also for the worst among us, including those convicted of heinous crimes, or those on trial for horrendous acts of terrorism. The prisons of Kenya are often well below minimum accepted international standards.

Under Kibaki attempts were sometimes made to address prison conditions and reform the wider system of law enforcement. Many basic human rights continue to be violated. The Kenya National Commission should have greater access to the prison system and to details of police conduct.

Partly because of the great imperfections of our society and of the flaws in the judicial and investigative infrastructure, Kenya should seriously consider suspending the death penalty for at lest the next twenty years, and reviewing the situation some time after 2025. There may even be a case for abolishing the death penalty altogether, as South Africa has done.

Civil Liberties

The KNCHR is mandated to "act as the chief agent of the Government in ensuring the government's compliance with its obligations under international treaties and conventions on human rights". More recent international obligations promoted by the United Nations and the United States include Kenya's expected cooperation with the international war on terrorism.

Pressures on Kenya to pass wide-ranging legislation against terrorism have raised concerns about possible violations of civil liberties. Is the American-led war on terrorism likely to lead Kenya back into the old politics of detention without trial? Will counter-terrorism aggravate risks of arbitrariness in law-enforcement and short-cuts in the judicial process?

A related concern about the war on terror is whether it is already beginning to target disproportionately Kenyan Muslims. Kenyan authorities and public opinion needs to monitor more closely the implications of counter-terrorism for civil liberties, religious fairness, and protecting Kenya's sovereign police powers from being usurped by external law-enforcement agents.

Sensitive Kenyans

Kenya must be more sensitive to the needs of the most vulnerable of its citizens: the very young, the very old and the disabled. National concern for the needs of the neediest goes back to African traditions of ujamaa and sense of family-hood. It also links up with more recent global liberal traditions. In the words of the British thinker, John Ruskin the "first duty of a state is to see that every child born therein shall be well housed, clothed, fed, educated till it attains years of discretion".

We need mechanisms of self-monitoring to ensure justice and fair play among our citizens. These include as a free press, citizen groups in defence of civil liberties, women's rights, and social justice. Executive powers can also be monitored through an Ombudsman or through Parliamentary oversight. As vital is for the Executive Branch to monitor itself or in partnership with the legislature. A government with both a President and a Prime Minister may have better checks and balances.

Kenya took a major step towards self-monitoring in 2002 when Parliament passed the Kenya National Commission on Human Rights Act. The National Commission became an independent governmental body in August 2003. But it was tested to the hilt by the post-election breakdown of 2008.

Kenya's parliamentary elections of 2007 were two steps forward in transparency and credibility. Kenya's presidential elections of 2007 were one step backward in confusion. Kenya's own defenders of human rights must seek to ensure that our society does not become a prison, and our prisons do not become cages.

The price of a humane society is eternal vigilance in defence of human rights. May the rehabilitated Kenya maintain such vigilance.

Article Source: http://www.afroarticles.com/article-dashboard

About The Author(s): Prof. Ali Mazrui is Chancellor of Jomo Kenyatta University of Agriculture, Kenya.

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