Home Opinion ”We Must Abandon Path Of Darkness And Death”- Rtd Chief Justice Willy...

”We Must Abandon Path Of Darkness And Death”- Rtd Chief Justice Willy Mutunga


Ladies and Gentleman,

I was asked to write a Preface to a book edited by Alamin Mazrui, Kimani Njogu & Paul Goldsmith, Countering Violent Extremism: Between the Rule of Law in Kenya and the Quest for Security , which will be launched on February 20, 2018.

I believe the theme of your conference on Human Rights and Security will attract, in some ways, some of the arguments I have highlighted in the Preface. I will, therefore, proceed to repeat these arguments here. I am very happy that audience is both national, continental, and global.

Those of you who are visiting Kenya you are welcome. We cannot, however, dare sing for you the song that is popular with tourists visiting Kenya (KENYA HAKUNA MATATA). Indeed, we should be singing for you HAHA! KENYA KUNA MATATA!

Let me proceed to read some of the paragraphs in the Preface that may be relevant to the theme of the your conference.

Before I do that let me observe that the debate about human rights and security is a very old one.

But it is a debate that refuses to die; even long after the the scholarly world had settled that the notion of “state security” -that fueled the debate in the first place – was limited and narrow.

The understanding has been that security must be seen in its holistic sense as “human security” and not “state security.” It is, indeed, amazing how reluctant the world is in attaching the word ‘human’ to ‘security’ as a matter of terminological cause, the way the word ‘human’ has become a natural pair to the word ‘human rights’.

The question and challenge is how do we force and embrace the words ‘human’ and ‘security’, and therefore, render the debate moot? The fact that we have not proves the point that statist notion of security still prevails.

Indeed, “the war on terror and security concerns quickly overtook human rights as a global language after the terrorist attacks on United States on September 11, 2001,” argues Professor Makau Mutua


This book is about how the rule of law can be invoked in countering violent extremism in Kenya. It’s diverse chapters clarify why militarized counter-terror approaches are insufficient to address the threat posed by extremists.

The authors point to the fact that there are times when the approaches exacerbate the root causes of terrorism and entrench feelings of exclusion, alienation and state insensitivity to community rights.

Moreover, terrorists have capitalized on local discourse of land grievances, inequities associated with identity politics, and state curtailment of civil liberties and political rights to recruit youth. The collective punishment of communities has served to further alienate the state and undermine its legitimacy.

The absence of compelling alternative narratives shared through appropriate channels has left a vacuum that is easily filled by extremists. In a nutshell, therefore, alternative narratives are about the fundamental restructuring of the status quo that also provides fertile ground for the growth of violent extremism.

The book gives us the opportunity to continue historicizing, problematizing, and interrogating some of the key concepts we take for granted. Zardar and Davies, for example write:

The term ‘terrorists’ was first coined by Edmund Burke to refer to those who conducted The Terror, the bloody, guillotine-wielding phase of that campaign for liberty, equality and fraternity known as the French Revolution.

Assassination is politically motivated murder directed at specific individuals, and is not designed to kill innocent bystanders. Terrorism is politically motivated aggression, warfare, that defines whole classes of people or nations as enemies who are collectively responsible and guilty.

Where no one is innocent, everyone is a potential target by design, though not necessarily by intent in each specific instance.

Overtime the term has been extended to states, terrorist states. Noam Chomsky, the renowned American intellectual and dissident has asked the Americans to ‘recognize that in much of the world the US is regarded as a leading terrorist state, and with good reason.

We might bear in mind, for example, that in 1986 the US was condemned by the World Court for “unlawful use of force” (international terrorism) and then vetoed a Security Council resolution calling of all states (meaning the US) to adhere to international law.’ Professor Makau Mutua, after cataloging some of these American attacks on other nations has stated, “…the indefinite detention of Al-Qaeda suspects in Guantanamo-in what is effectively a legal ‘black hole’-seriously dents the claim that the US is a rule of law state.”

Demystifying states then broadens our analysis to ask ourselves that states that kill, murder, starve, steal, and raid national resources with catastrophic consequences, are not terrorist states.

Are struggles to overthrow by violent or non-violent means such states an act of terrorism? Was Edmund Burke right to see the French Revolution in such terms? Such questions call for intellectual, ideological, and political clarity.

The title of this book is Countering Violent Extremism.

So, we may ask what is non extremist violence? Is not violence, ipso facto, extremist? Is this not another anachronistic term like over speeding? Have the past and present superpowers invented this term to justify extremist security interventions that abrogate rights?

Our holistic approach going forward will have to bear in mind this method of historicization, demystification, interrogation, and problematization.

The approach needs to include also prevention focused programming addressing the structural factors that push youth to radicalization and extremist violence.

The development of alternative narratives and mitigations appear to be more promising than dependence on interventions that contribute to the attraction of violent extremist ideologies.

This broader approach would need to be undertaken within a framework of rule of law, and to reinforce good governance practices as articulated in the Constitution of Kenya and international legal instruments.

The more comprehensive approach would contribute to reducing support for violent extremist ideas while enhancing internal resilience and cooperation among local communities.

It will necessarily combine measures dissuading radicalized individuals from participating in extremist violence with the rehabilitation and reintegration of individuals who may have been radicalized.

Quite often, the positive role of rule of law in countering violent extremism is not appreciated. Yet by working through the legal framework, the drivers of extremist violence can be reduced and support for state functions secured.

The legal framework mandates the promotion of justice, respect of rights and inclusive political and economic practices—factors fundamental for an effective long-term counter-radicalization strategy.

The Constitution of Kenya provides an important framework for addressing the contextual, political, economic, and social factors that feed violent extremist ideology.

If well implemented, devolution will decentralize political power and give communities more decision making power in choosing leaders, determining development priorities, and demanding accountability and transparency in the use of public resources.

The impacts of economic, social, cultural, and political marginalization, which accumulated prior to 2010 when the new Constitution was promulgated, can be reversed through the empowerment of county governments and implementation of other constitutional provisions related to inclusion.

Article 238 of the Constitution of Kenya provides guidance on how to promote and better guarantee national security.

Specifically, Article 238 (2) (b) provides that “national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.” The quest for security is best undertaken with these principles in mind.

It is critical to appreciate the colonial and post-colonial economic, social, cultural, and political history of Article 238. History records colonial and post-colonial state terrorism against the Kenyan people.

There was no accountability and this state terrorism was all about impunity and immunity. So, we have a criminal history of state extrajudicial killings, massacres, “punitive expeditions,”and colonial state terrorism against the Mau Mau Freedom Fighters who colonial state saw as the terrorists.

So Article 238 is about making sure that the state is just, accountable, transparent, bound by a modern Bill of Rights (that is a whole gamut of economic, social, cultural, civil, and political rights); values and principles of governance (Article 10 of the Constitution); and again bound by the supremacy of the Constitution and the sovereignty of Kenyans.

It is on the basis of this history that the Constitution defines national security as “the protection against internal and external threats to Kenya’s territorial integrity and sovereignty; its people, their rights, their freedoms, property, peace, stability and prosperity, and other national interests.”

National security organs in performance of their duties “shall respect the diverse culture of the communities within Kenya.” This critical article ends by decreeing that “recruitment by the national security organs shall reflect the diversity of the Kenyan people in equitable proportions.”

Given the colonial and post-colonial politics of division and polarization the Constitution guarantees that national security organs shall not be ethnicized or be subject to any of the political divisions. Indeed, this is to ensure that our diversity is a pillar of our security and unity.

In the past the post-colonial state has been heard to justify security trumping freedom.

There has been workshops that have discussed the false question, “Security or Freedom?” Article 238 of the Constitution does not countenance such a false question.

Our security is our fundamental freedom. Our security is our fundamental right. Posing the question the way the state organs to justify extrajudicial killings flies in the face of the clear provisions of Article 238.

Under our Constitution even the terrorists have rights of life , due process, and other rights and freedoms spelt in our modern Bill of Rights.

I believe Kenyans want to make the point that terrorists are not their teachers.

Kenyans will defend the rights of the terrorists and deal with them according to the dictates of the Constitution. So, while in armed combat the Kenyan security organs will defend the county and themselves, the moment the terrorists are in their custody then their rights kick in.

They are entitled to fair trial. Their rights against torture are guaranteed.

That is a hallmark of the civilization of Kenyans. The impulse to do to terrorists what they do to us makes terrorists our teachers. That is the notion and practice our progressive Constitution outlaws. An important point to bear in mind is that the Constitution is aware that security organs can be the cause of the violation of the rights of innocent Kenyans in their quest of fighting terrorism.

Our criminal jurisprudence is clear on the issue. Extra-judicial killing will result in the perpetrator being tried for murder. Security organs cannot shield criminals in their midst under the false question of security or freedom. The Constitution does not allow them to ask that question.

Youth, the media, and civil society actors are de facto partners in the quest for rule of law and security. They play a critical role in public education, monitoring state institutions, research and advocacy, and other activities supporting the pursuit of democracy. They can contribute to the development of policy and programs for prevention and countering of violence extremism anchored under the Constitution of Kenya. Developing a culture of constitutionalism is critical for strengthening of governance and judicial institutions, sustaining fair and effective criminal justice, and for protecting the human rights which are crucial for enhancing state legitimacy.

This is the reason why the conduct of the state in Kenya in the last four months must be condemned. The systematic erosion of fundamental rights and freedoms must be challenged for they are an affront to our Constitution, our rights and, ultimately our security. Disregarding the rule of law predisposes a country to political instability which then precipitates insecurity and conflict. We cannot have a police force that gratuitously kills demonstrators, as we have seen since the last elections, for merely demonstrating and expressing a divergent opinion.

Kenyans have the constitutional right to dissent without being detained, brutalized, or murdered. The shut down of the media is unacceptable and constitutes a dangerous and unacceptable constitutional attack on our freedom and democracy.

The arrest of lawyers in court premises and the blatant disobedience of court orders deserves aggressive condemnation and must stop.

It is a chilling prelude to the arrest of judicial officers in their chambers in the way Idi Amin did in Uganda resulting in the murder of the Chief Justice Benedicto Kiwanuka in 1972.

Disobedience of court orders is the overthrow of the constitution and the rule of law. It is a great test upon the Judiciary. The Judicial Service Commission must protect the Judiciary.

The judges and magistrates must now rise to the occasion and defend the constitution and their oath of office.

The political leadership in the country must summon the courage to deal with the political differences that exist maturely and responsibly instead of taking a path that merely imperials our freedoms and peace.

The Constitution envisaged deep political, social, cultural, and economic differences and created institutions and processes to deal with them.

We must remain faithful to those frameworks and abandon a path unto Darkness and Death of the colonial and postcolonial years of yore.

I hope the Kenyan elite will read what we are saying and are writing. I hope they do not just laugh. I do not want to believe that civil war is for the elite the best playground, and they are really afraid of peace and times when the law is respected.

This book is an important starting point for engagement between government agencies, civil society institutions and development partners. We hope that it will catalyse multi-sectoral dialogues and programs in order to better deal with the threat of terrorism through a human rights framework.

This book is also a collaboration of a think tank that can be called an “organic intellectual” (Twaweza Communications) because of its research mandate that is linked to movements of transformation; and an activist human rights organization that has contacts with social movements, MUHURI.

Such collaboration is going to be important as social movements of transformation are nurtured from the margins of the counties. Such solidarity and collaboration must be encouraged and promoted.

Finally, this book is a specific inquiry about Kenyan condition under violent extremism. We know, however, that Kenya does not exist in a vacuum. Violent extremism either by state or non-state actors is a global concern of monumental proportions.

Indeed, Eric Hobsbawm argues rightly that “Our world risks explosion and implosion. It must change.” Threats of nuclear welfare are a reality of the dangers our planet faces.

Although there is no specific think piece in the book that focuses on the global impacts of violent extremism and their causes, the long introduction attempts to connect the Kenyan inquiry to these global concerns.

Saving our planet will entail national, regional, and global solidarities that challenge the global status in a struggle for a better, just, equitable, non-violent, safe, and prosperous planet.


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