Lawyer PLO Lumumba once described the Constitution as “the mother’s milk of democracy”.
It is from it that we, the people, derive our sustenance as a nation. Without it, we would descend into what British philosopher Thomas Hobbes described long ago as a life that is “nasty, brutish and short” where every man fights for himself.
This is precisely why the country must stand up to the emerging tyranny now personified by the director of the NGO Co-ordination Board, Mr Fazul Mahamed.
On Monday, he said that the board had de-registered the Kenya Human Rights Commission (KHRC) ostensibly because it had failed to comply with tax laws among other misdemeanours, including hiring expatriates irregularly.
On Tuesday, he added insult to injury by asking the Directorate of Criminal Investigations to crack down on the African Centre for Open Governance (Africog).
In his letter, he accuses Africog of operating as a charitable organisation rather than as an NGO as required in law.
His arguments could be valid but the same law also requires that no adverse action should be taken against a person or institution before being given the right to defend themselves.
It is worth remembering that Africog filed a presidential election petition in 2013.
Coming just days after the declaration of this year’s election results, the drastic decisions taken by Mr Mahamed create the impression that his actions are guided by more than the noble pursuit of the letter and spirit of the law.
The law presumes that a person or institution is innocent unless and until deemed guilty by a court of law.
Did Mr Mahamed give the two institutions a platform to be heard and defend themselves?
It is not too much to ask that both KHRC and Africog be allowed to enjoy that protection of the law. Given the trend, one can hazard who will be targeted next.
Its shortcomings notwithstanding, civil society is the conscience of a nation.
Even if individuals take positions that those in authority disagree with, government institutions ought not to take arbitrary punitive measures against the NGOs.
Punishing the institutions for the political positions taken by individuals reeks of discrimination and intimidation.
Kenya is a land of diversity. Indeed, we are invited to celebrate that diversity, which includes diversity in the opinions we hold.
This does not exclude political opinions. The attack on civil society groups by the NGO Board is an assault on freedoms the Constitution guarantees.
It is an attack on democracy itself and threatens to roll back the gains that have expanded the political landscape. The speed with which the board has moved after last week’s elections also raises the question of whether this is politically-motivated. It is not only a danger to civil society itself, but also to our society itself and the principles that inform our understanding of nationhood.
The preamble to the Constitution is unequivocal. “We the people of Kenya… honouring those who heroically struggled to bring freedom and justice to our land…”
This reminds us to be always aware of not just those who fought for our nation’s independence, but also civil society players who brought the second liberation.
The preamble also enshrines as sacred Kenya’s commitment to “recognising the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.
Is the NGO Co-ordination Board living up to this high calling of the Constitution? Has it demonstrated that it is motivated by the law and nothing else but the law?
Mr Mbugua is the Editor, Saturday Nation. [email protected]