Kenyans will be going to bed tonight aware that the Uhuru Kenyatta government has instituted a state emergency without declaring the same. Article 132 (4)(d) empowers the president to declare a state of emergency. The circumstances under which he may act are not clearly specified. It names war and general insurrection. These two cannot be used to declare an emergency at the moment on the grounds that there is no war and there is no insurrection. There named is also natural disaster. So far there is no natural or man-made disaster in Kenya.

That leaves “disorder” as the big loophole. In  a move that has surprised many, Uhuru Kenyatta merged from his ancestral home to announce that Alshabab was not the perpetrator of the Mpeketoni Massacre. This was coming barely 48 hours after the first attack and less than 12 after the second. He claimed that he had information that the attacks were politically motivated. It is clear from the insinuations that his reference to political involvement directly points a finger at Raila Odinga.

It should be noted that Raila returned to Kenya only a few days ago to a nervous reception by Uhuru and his retinue who at one time attempted to ban a welcoming rally citing intelligence of violence. They had a change of mind when it looked like they were precipitating political chaos in the city.  Thousands of people had been bused in to Nairobi to welcome the opposition leader and that might partly have been responsible for their nervousness.

It must be noted here that Al Shabab has already claimed responsibility for the atrocities in Lamu County. So the image of the President of Kenya denying that Al Shabab did not carry out the attack was quite sobering to most Kenyans. His supporters of course took to the social media to trumpet the wisdom of the decision. The leading ruling Jubilee alliance chief ideologue Mutahi Ngunyi could authoritatively tweet: To blame Al Shabaab on Mpeketoni attacks is NAIVE. Al Shabaab taking blame is fake (can’t verify). THIS is MRC re-loaded. Rented Terrorism!

He tweeted this hours before any senior police officer had stepped at the scene of the massacre. There were no forensic experts on the scene and no effort to get any as the case was with Westgate. When the police did come, they supervised a cleaning up operation where they rounded up young boys in the town and forced them to carry the dead bodies in to waiting dirty trucks – thus contaminating evidence and ruling out any further forensic investigations. It was clear from the operations that the police had already made their conclusions and did not bother to investigate. Perhaps that explains the piling dead bodies on top of other dead bodies.

If this signal was ignored, the statement by the Cabinet secretary of Internal Security must have been an open giveaway. He had not stepped on the scene to see the mess the police were making of the investigation and he knew that no experts had reached the scene. Yet he categorically accused Raila Odinga of being behind the attack.

It should be noted that he appeared to give the press conference in the company of a submissive Inspector of Police whose constitutional office is higher than that of the C.S. They had been attending a National Security Advisory Council Meeting. Sources had indicated to Omollosview that an earlier meeting involving the President, his Secretary Mr. Kinyua, Mr. Amos Kimemia the Secretary to the Cabinet, the Head of the National Intelligence Service -Mr. Gichangi, Military boss James Karagi and  CID director Njuguna Muhoro had met before the NSAC meeting in which all the major decisions such as blaming Raila had been decided.

PART 4 – STATE OF EMERGENCY

58. State of emergency

(1) A state of emergency may be declared only under Article 132 (4)(d) and only when—
(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and
(b) the declaration is necessary to meet the circumstances for which the emergency is declared.

(2) A declaration of a state of emergency, and any legislation enacted or other action taken in consequence of the declaration, shall be effective only—
(a) prospectively; and
(b) for not longer than fourteen days from the date of the declaration, unless the National Assembly resolves to extend the declaration.
(3) The National Assembly may extend a declaration of a state of emergency—
(a) by resolution adopted—
(i) following a public debate in the National Assembly; and
(ii) by the majorities specified in clause (4); and
(b)  for not longer than two months at a time.

(4) The first extension of the declaration of a state of emergency requires a supporting vote of at least two-thirds of all the members of the National Assembly, and any subsequent extension requires a supporting vote of at least three-quarters of all the members of the National Assembly.
(5) The Supreme Court may decide on the validity of—
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; and
(c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

(6) Any legislation enacted in consequence of a declaration of a state of emergency—
(a) may limit a right or fundamental freedom in the Bill of Rights only to the extent that—
(i) the limitation is strictly required by the emergency; and
(ii)  the legislation is consistent with the Republic’s obligations under international law applicable to a state of emergency; and
(b)  shall not take effect until it is published in the Gazette.
(7) A declaration of a state of emergency, or legislation enacted or other action taken in consequence of any declaration, may not permit or authorise the indemnification of the State, or of any person, in respect of any unlawful act or omission.


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