When the State becomes the prime suspect

By  Kangara GN

Advocate of the High Court of Kenya

High Court of Kenya

A republic does not always die when its constitution is overthrown. Sometimes, it dies while the constitution is still being quoted. It dies quietly. One abduction at a time.

One unexplained disappearance after another. One frightened mother wandering between police stations and mortuaries, searching for a child whom the State insists it has never seen.

Perhaps the greatest tragedy of constitutional democracy is not the existence of lawlessness, but the possibility that those entrusted with enforcing the law may themselves become its suspected violators. Where does a citizen seek refuge when the guardian is suspected of being the aggressor? Who interrogates power when power itself stands accused?

As an Advocate of the High Court of Kenya, I was perturbed by the reported abduction of my learned colleague Ahmedsadak Abshir Abdi. An Advocate is an officer of the court, a custodian of due process and a defender of constitutional liberty. That one of our own could disappear under such disturbing circumstances is profoundly unsettling.

It compels me to confront a question I wish our republic never had to ask: if an officer of the court, whose calling is to defend the liberty of others, cannot be assured of his own safety, who among us is truly safe? Today, it is an advocate. Tomorrow, it could be a journalist, a political dissenter, a student or an ordinary citizen whose only offence is exercising constitutional freedom.

The perpetrators remain unidentified, and claims of State involvement require independent investigation and proof. Nevertheless, the disappearance exposed the fragility of public confidence in institutions entrusted with protecting life and liberty.

Constitutional innocence

Kenya's Constitution of 2010 was not born from constitutional innocence. It emerged from the bruises of our national history: detention without trial, political persecution, torture and unchecked executive power. It represented a solemn national covenant that never again would individual liberty depend upon the temperament of a public officer or the convenience of those occupying power.

Article 29 guarantees freedom and security of the person. Article 49 protects arrested persons. Article 25 places the right to habeas corpus beyond limitation. These provisions are not literary embellishments decorating our supreme law. They are boundaries beyond which public power must never wander.

The Constitution recognises lawful investigation, arrest and prosecution. Nowhere does it recognise abduction as an investigative method, disappearance as an instrument of governance or secret detention as an alternative to an open courtroom.

A nation that forgets why it wrote its constitution may eventually rediscover why it needed one. For when the State becomes the suspect, the constitution must remain the witness, the law must remain the judge, and justice must never become another missing person.

The law permits the State to arrest a suspect. It does not permit the State to erase a human being. Equally troubling is the temptation to treat official ignorance as sufficient explanation whenever a citizen disappears. A government may deny having taken a citizen; but alas, it cannot deny its constitutional responsibility to search for him!

Article 21 imposes upon the State an obligation to protect fundamental rights. That duty cannot be discharged through rehearsed denials, inconclusive investigations or institutional silence. Not every disappearance is attributable to government. Constitutional fairness demands evidence before culpability is assigned. But the absence of proven State involvement cannot excuse institutional indifference.

Greater danger

The State is not automatically responsible for every crime. It remains accountable for the diligence and integrity of its response; and therein lies the greater danger. Tyranny rarely announces its arrival. It begins as an exception, becomes a practice, acquires defenders and eventually demands acceptance as necessity.

Yesterday's outrage becomes today's headline. Today's headline becomes tomorrow's silence. And in that silence, impunity discovers permanence. The Constitution recognises no hierarchy of human dignity. The liberty of an advocate is no more sacred than that of the humblest citizen.

A republic is not free because its powerful citizens are safe. It is free when even its most powerless citizen enjoys the protection of the law. Our Judiciary must remain a fearless custodian of liberty. Parliament must exercise meaningful oversight. Investigative institutions must pursue the truth wherever the evidence leads.

For constitutional democracy is measured not by the sophistication of security machinery, but by the quiet confidence of an ordinary citizen that, even when standing alone against the powerful, the law will stand beside him. Kenya must never become a country where citizens disappear into darkness while the Constitution remains awake only on paper.

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Kang’ara GN is an Advocate of the High Court of Kenya and a practitioner in Constitutional Governance and Public Policy