Emergency powers in Kenya: a study of the extraordinary executive powers vis-a-vis the international covenant on civil political rights, 1966
Kathurima, G Inoti
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This work endeavours to lay bare the nature and content of emergency powers in Kenya, i.e. the gamut of the extraordinary powers vested in the Executive in times of grave national peril to save the nation and assesses their ccnf o rmf.t y or non conformity with the international standard as laid out in the International Covenant on Civil and Political Rights, 1966. Specifically the work tries to unravel the implications of these powers, first for the enjoyment of fundamental rights in Kenya, and secondly, for Kenya's obligations under international law. The work starts off by providing a working definition of emergency situations and emergency powers. It traces the concepts through a historical perspective from the Roman Republic to modern Constitutions, and isolates emergency powers as drastic and extraordinary powers, temporary in nature, granted to the Executive when the life of the nation is endangered for purposes of saving the nation, and which, because of their Draconian nature, are never free of serious formal controls. The second Chapter examines how international human rights instruments - the International Covenant on Civil and Political Rights, 1966, the European Convention on Human Rights, 1952, the American Convention on Human Rights, 1969 and the African Charter on Human and Peoples' Rights, 1981 - have synthesised protection of human rights with emergency powers. Particular attention is paid to the provisions of the International Covenant on Civil and Political Rights 1966, to provide a standard against which to evaluate emergency powers in Kenya. An extension of the concepts of emergency and emergency powers is discerned at the international level, coupled with the casting of onus on States Parties to the Covenant to right any discrepancies that there may be between their municipal laws and practice and the norms of the Covenant. Chapter Three is an examination of emergency powers in colonial Kenya where an extreme institutionalization of emergency powers, giving them the countenance of ordinary peaceti~e law and is seen. Here emergency powers are not extraordinary, temporary or for saving the life of the nation. This change in nature and role of emergency powers is explained by the very idea of colonialism, which, based as it was on the exploitation, dod!nation and subjugation of a numerically superior people demanded institutionalized emergency powers to overcome and suppress 'native' opposition. At independence time in 1963, however, the colonial edifice of institutionalized emergency powers is dismantled and in its place is erected a structure which in nature and content tallies with long established conception of emergency powers and th~ international standard. This fundamental change reflects the bouyant spirit of independence and is a culmination of a vision of freedom and dignity, the clamour for which had fired and sustained the independence struggle. It was as much a rejection of repressive powers in peacetime from which many Africans had suffered, as it was fulfilment of a promise made long before independence. Chapter Four deals with emergency powers in post-independence Kenya and their operation in practice. By a series of constitutional amendments, a radical departure from the emergency powers inherited at independence is effected. The controlled and restricted emergency powers which ushered the country to independence are replaced with emergency powers which in nature and content closely approximate the emergency powers of the colonial era. In practice these emergency powers are invoked in instances of peace and tranquility and when the life of the nation as such is in no apparent danger. In terms of control of these powers, the role of the legislature is greatly inhibited by the rise of a one party system with the political party reputedly the supreme organ of the State, while that of the judiciary is defeated by a stringent policy of 'self-restraint'. Inherent in these post-independence developments is perceived not only a relenting from the noble assumptions made at independence, 41 but also a relapse into the colonial policy of reliance on emergency powers as an efficient tool of peacetime administration, a situation which makes condemnation of emergency powers in colonial Kenya and toleration of the self-same powers in independent Kenya difficult to justify. Chapter Five looks at emergency powers in Tanzania and Zambia, for limited comparative purposes. Though emergency powers in these jurisdictions are found to resemble those in Kenya in many respects, the control of emergency powers there has attained new heights from which Kenya could borrow a leaf. While in Tanzania a person aggrieved by exercise of emergency powers is by law entitled to challenge any aspect of the invocation of these powers, in Zambia the judiciary has relentlessly denied casual resort to emergency powers by invalidating irregular use of those powers. The last Chapter evaluates emergency powers in Kenya in light of the Tanzanian and Zambian experience and in particular in light of the country's obligations under the International Covenant on Civil and Political Rights, 1966. The position is taken that a glaring discrepancy exists between the laws and practice relating to emergency powers in Kenya and the international standard, a situation which not only inhibits the full realisation of fundamental rights, but also engages the country's liability under 46 international law. As a remedial measure, it is suggested that in a country like Kenya whose political stability is a matter of official pride, there is no legitimate reason why emergency powers should be resorted to when the country is not in a State of Emergency. This therefore calls for annulment of such powers in times of peace to foster a fuller realisation of the fundamental rights as well as to discharge obligations under international law. As a poor second alternative the enhancement of the safeguards for victims of these powers is suggested, to ensure that emergency powers do not degenerate into a mere political weapon.