By D Olusi
It is factual that unrestricted moral demands need not assign obligation to everyone. The moral obligation may be unrestricted even if it assigns obligation to those in power.
Experience teaches us that human rights can be violated by government agencies and officials: by the general staff of an army, by the police officers, by the spy agencies, by the government legislative side among others but not by a petty criminal or a violent husband.
Today in Kenya or in our Kenyan moral world, official agents are paradigmatically exemplified by the government and its agents and agencies. Paradigmatic official disrespect of human rights is their violation by none other than the government itself.
How is the government violating human rights? The government is violating human rights by issuing, legislating or maintaining unjust laws and orders. Of late we have seen the current government officials issuing threats and warnings to protesters in disregard to the right to peaceful protest and picketing.
We have witnessed protesters being brutally beaten, tear gassed, shot at and even killed by the police officers. All these violations have happened under the full force of impunity. By applying the excessive force of violence upon its citizens (no matter which side they support) the government deliberately refuses to distinguish the difference between ‘Protests and riots’ between ‘extrajudicial killing and judicial killing’ between ‘mob justice and mob injustice.’
The epitome of the violation was witnessed when the legislators were recalled from recess and intimidated under duress to pass the government amendments to the election law. The official violation of human rights was witnessed when the parliament was taken under siege by the military, the parliament internet was disconnected, the media was chased away and opposition legislators were treated like aliens.
One can effectively say that the rights of the legislators, especially those on the opposing side were seriously and deliberately violated. The legislative right and office were abused.
The government, therefore, is violating human rights under the “color of law.” Quoting St. Augustine of Hippo, Martin Luther King argues as follows. “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws.
One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all”. Martin Luther King, Jr., Letter from a Birmingham Jail (1963). And to put it in the terms of St. Thomas Aquinas, “An unjust law is a human law that is not rooted in eternal law and natural law.” Of course, natural law according to St. Thomas is the participation of man in the divine law (The law of God).
The government is violating human rights by perversely construing existing legislation as licensing human rights violations. This is done through the legislative tyranny of numbers or through the agency of the attorney general’s office. The “official” moral wrongs by the government are worse than “private” moral wrongs. Official moral wrongs by the government are worse because they harm more severely the powerless. Official government moral wrongs masquerade under the name of law and justice and these are generally committed quite openly for all to see: laid down in statutes and legislations, called for by orders and verdicts and adorned with official seals, stamps, and signatures. Such moral wrongs by the Kenyan government do not only merely deprive their victims (Kenyans) of the object of their rights but attack those very rights themselves. They don’t only subvert what is right but the very idea of right and justice.
Most Kenyans currently feel more personally affronted by human-right violations than by equivalent ordinary crimes, and also feel personally responsible in regard to them because they see human rights as everyone’s concern and feel implicated in, and experience shame on account of what their government and its officials do in their name. If we expand the meaning of the government beyond the normal paradigm (government: its agents and agencies) a pragmatic instance of official disrespect of human rights is then clearly their violation by the government. For example, if the military officials, police officers, provincial administrators, government side legislators, cabinet secretaries, attorney general, spy agencies, media establishment, the government bent lawyers and judges among others collude to violate human rights that clearly means it is the government that is culpable.
The government in some occasions has ordered or authorized the violation of human rights and effectively prevented violations on the point to of its various agencies and officials while reserved for itself the legal power to order or authorize such violations at any time at its own discretion. Conversely, we understand the government legally bind itself never to violate human rights but it has done nothing or very little to ensure that various agencies and officers abide by the official prohibition of violation as per the Universal Declaration of Human Rights (UDHR) or as per its constitution and other international obligations. For example, in the case of post-election violence, ICC witness interference, disappearance and killing of human right lawyers and activists, political assassinations, historical injustices and so forth. While legally committing itself not to violate human rights and effectively enforcing commitment against its agencies and officials, the government fail to make such violations illegal for some or all the persons and associations under its jurisdiction.
Therefore, the moral wrongs committed by government officials fit better under the label of “human-rights violations” the more closely they are related to their job and the more tolerated or encouraged they are throughout officialdom of their duties. Finally, a murder committed by a mailman, even if on duty would hardly count as a human right violation, but torture administered by a policeman to a suspect would count, unless perhaps, it is a truly isolated incident of conduct that is strongly discouraged within the police force and severely punished when discovered. In view of this plurality of cases, how shall we explicate the idea of official disrespect of human rights by the Kenyan government?
The author, Olusi David is a Ph.D. Candidate in Systematic Ethics.