The threats and intimidation that Senator Omtatah has faced from President William Ruto are in the public domain. Senator Omtatah should not be the object of threats and intimidation from any quarter. Not even from the President. As a Senator in the Kenyan Senate representing the people of Busia County, his rights under the constitution must be respected, upheld, and defended.
Kenya’s history is replete with accounts of similar threats and intimidation against Senator Omtatah’s predecessors in the postcolonial parliament. History records the assassinations of Pio Gama Pinto in 1965, Thomas Joseph Mboya in 1969, JM Kariuki in 1975, and Dr Robert Ouko in 1990. History also records the threats and intimidation that Waruru Kanja endured in the 1970s. Waruru Kanja exposed the authors of the threats and intimidation against him on the floor of parliament and it can be argued that this action saved his life; he ultimately died of natural causes. Waruru Kanja publicly named in parliament the people inside and outside the house who were to be held accountable should he die of unnatural causes. It is probable that those named dropped their heinous plans because of this public exposure.
It has been argued that the members of parliament who were assassinated knew that their lives were in danger but failed to name those who were a mortal threat to them. I would advise Senator Omtatah to make public his exchanges with the president, and to tell the nation whether he fears for his life.
Let us not forget the “seven bearded sisters” of the 1970s who, as members of KANU in parliament, stood up to threats and intimidation from the dictatorial party of which they were members. There were seven men and the only real sister was there close associate Chelagat Mutai. They all ultimately faced intimidation, exile, detention, and jail. The valiant Kenyans in parliament who were members of the Kenya People’s Union (KPU) suffered a similar fate. The great Jaramogi was detained in Hola for 18 months and was later placed under house arrest after the 1982 attempted coup.
Senator Omtatah is one of the Kenyans and legislators who have breathed life into our constitution through robust and rigorous public interest litigation/strategic interest litigation. He has been at it for years now. I had the distinct honour of hearing him argue his petitions and appeals in the Supreme Court when I was president of that court. Senator Omtatah was also an interested party in many petitions filed by such public litigators as the Katiba Institute, the Kenya Human Rights Commission, and Muslims for Human Rights.
Senator Omtatah has been very strategic in breathing life into Article 1 of the Constitution which states that sovereign power resides in the Kenyan people. He has rightly earned his endearing name, Citizen Omtatah. Before becoming a senator, he was active in civil society as an informed citizen who led by example, actively taking on the responsibility bestowed upon us as citizens by Article 3 (1) of the Constitution to respect, uphold and defend it.
On becoming a senator, Citizen Omtatah swore that he would “bear true faith and allegiance to the People and the Republic of Kenya”, that he would “obey, respect, uphold, preserve, protect and defend this Constitution of Kenya”, and that he would “faithfully and conscientiously discharge the duties of a member of Parliament”. Senator Omtatah has amply demonstrated that he can discharge his obligations both as a citizen and as a member of parliament.
Senator Omtatah must not be the subject of threats and intimidation from a president who is bound by his oath of office to obey, preserve, protect, and defend the Constitution of Kenya. The president is also bound by Article 3(1) of the Constitution. The vision of the constitution is to defang the imperial presidency of its dictatorial powers and, indeed, under the 2010 Constitution, the president cannot talk of “my Government” and in the same vein, a judge or judicial officer cannot talk of “my court”. In both cases, it is the citizen who is the sovereign president and the sovereign judge or judicial officer because both offices operate on the delegated sovereign power of the people of Kenya. State and public officers need to internalise this constitutional culture by shedding off all colonial and postcolonial dictatorial proclivities in their respective offices.
Surely, those like Senator Omtatah who are breathing life into our 2010 Constitution cannot be described as “criminals” who should face the sword. Access to the courts to seek justice, applications to strike legislation that is unconstitutional, and the freedom to express an opinion cannot be revoked by presidential fiat.
I call upon the civil society leadership (both secular and religious) to come out and speak up in support of Senator Omtatah. Parliament should also join in his defence. We did not promulgate the 2010 Constitution to then find it inconvenient and subvert our oaths of office.
President Ruto joined those Kenyans and religious groups that voted against the draught constitution in the referendum that gave us the 2010 Constitution. We respected all those who voted NO in the referendum because it is their democratic right. We now call upon them to respect the rights of the Kenyans who voted YES and stop subverting the constitution.
The promulgation of the 2010 Constitution on 27 August 2010 was about ending a status quo that was unacceptable and unsustainable. After 60 years of KANU dictatorship, and after 13 years of a struggle to implement it, we will continue to demand that the constitution be obeyed, preserved, respected, and defended by all the people of Kenya including all state and public officers.
We applaud Senator Omtatah for following in the footsteps of the courageous parliamentarians who stood up against the KANU dictatorship that is yet to end. Resistance is the mother of democracy and freedom, indeed, the mother of revolution for social transformation. In our 2010 Constitution, we have many sites of resistance which we must engage by making clear and continuous political demands to the powers that be. Only through the implementation of our 2010 Constitution is it possible to continue the fight for social transformation.
