Tuesday, 7 August 2012

Law Opinio by Lawyer Dan Mwangi

Why MRC Remains Dangerous

Lawyer Dan Mwangi
A week ago, the High Court in Mombasa made a judgment, which is largely unpopular, that the ban on Mombasa Republic Council as a criminal gang should be lifted. 

The decision has attracted a lot of public protest and displeasure because in as much as the rights of the MRC members to fight for their grievances are enshrined in our constitution and laws, they have been using unorthodox means to fight for these rights and sometimes even unconstitutional means. 

They have been accused of raiding some police stations in Kilifi and Kwale Counties, violently disrupting the Independent Electoral and Boundaries Commission mock elections in Malindi, unlawfully recruiting and administering oaths to children and general disturbance of public peace.

 Additionally, their calls for secession anchored on the calls of Pwani si Kenya have generally being bordered on the fact that other ethnic groups from the Mainland Kenya should be chased from Mombasa County. However although they portray that Pwani Si Kenya, it’s only a few youths from Mombasa, Kwale and Kilifi counties that are members of the MRC as the same calls for secession are not evident in Tana River, Lamu and Taita/Taveta counties, which are also in Coast Province.

In this regard, it is important to interrogate whether in the first place the High Court was right or wrong, or in deed if it elevated MRC into a belligerent group that can lead to recognition of Coast Province into a state by some countries under public international law. Further, it is equally important to   evaluate whether the calls for secession are constitutional or not and if the calls for secession are the solutions to historical injustices at the Coast even though all regions in this country share almost the same problems.

Firstly, although I appreciate the judgment made by the court, I find the judgement having failed to take judicial notice of the criminal activities that MRC has been doing in public since they were banned in 2010. Inasmuch the state counsel did not tender substantive evidence of criminal activities that MRC has been doing before being banned but rather tendered evidence of criminality after the group was banned, it was vital that the judges, on request by the state counsel if any, to take judicial notice of illegal activities that MRC is perpetrating.  Further, by the time the group was banned in 2010, the state averred that MRC was an active arm of the Republican Revolutionary Council that was calling for eviction of non-coastal people from Mombasa. 

 However, although the state counsel was unable to prove a link between MRC and RRC so as to sustain their argument that MRC was a criminal gang, the judges ignored the fact that currently, MRC is typically doing the same criminal activities that RRC was previously doing. RRC largely reincarnated to MRC.

Therefore, by ordering the lifting on MRC ban but still emphasizing that MRC calls for secession can only be achieved through a peoples referendum, critical constitutional matters arises. Our Constitution is unlike the one of the Federal Republic of Ethiopia which acknowledges the right to self determination through secession. Article 5 is clear that Kenya consists of the territory and territorial waters comprising Kenya on the effective date and any additional territory and territorial waters as defined by an Act of Parliament. 

Therefore, our constitution, which is the supreme law of our country and capture the aspirations of the people does not at all envisage the loss of even an inch of our territory as MRC may want but only an addition! Further, Article 6 (1) of the Constitution is unequivocal that Mombasa, Kilifi and all the other counties are part of the Kenyan territory. Therefore, the judgement should not embolden MRC to purport that they are a belligerent community which often represents a political movement aiming at independence and secession. As such the national government and the incoming county governments must deal with such groups accordingly and address their plight. If they don’t do so, MRC will degenerate into a belligerent or insurgent body within Kenya that may enter into legal relations and conclude agreements valid on the international plane with states and other belligerents and insurgents. It may lead to Coast Province being like Taiwan, which Chinese government insists is a Province in China but other states recognize it as an independent state.

With devolution of both resources and powers, MRC should stop secessionist demands as they have a chance to participate in resolving their land and unemployment problems. For now, the government should use all legal means to stop MRC being a menace in the country and the courts should avoid unnecessary judicial activism as they do not consider public office.
Dann Mwangi, Lawyer

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