Unconstitutional AF

Henry Kissinger once infamously said, "The illegal we do immediately. The unconstitutional takes a little longer.” 

What the heck was he talking about? I can't remember the context in which he said that, but it's a pithy quote and it has stuck with me like a barnacle for years.

There are things a president should never, ever say. “Shoot them in the legs” is one of those things. 

The Constitution of Kenya 2010 is not a suggestion. It is the supreme law of the land. When the president orders security forces to shoot civilians (whether in the chest, the head, or the legs), he is in breach of the Constitution.

It's important to make the distinction between the constitutional and the illegal. All unconstitutional acts are illegal, but not all illegal acts are unconstitutional. 

Ruto's statement was illegal because it violated Kenya’s ordinary laws, including the National Police Service Act, which strictly regulates the use of force. 

More importantly, it was unconstitutional because it breached the right to life (Article 26), the protection from torture and cruel treatment (Article 29), the right to peaceful protest (Article 37), and the President’s obligation to uphold the Constitution under Article 131(2)(a). 

There is no circumstance under Kenyan law where the President can lawfully order police to shoot Kenyans in the legs. Our legal framework (Constitution of Kenya 2010, the National Police Service Act, and international treaties Kenya has ratified) strictly regulates the use of force, reserving it for extreme situations where there’s an imminent threat to life. When force must be used, the use of force must be proportional, reasonable, and necessary. 

Besides, the President is not a battlefield commander and has no legal authority to direct how or where civilians should be shot. That's not his job. Period. 

His role as commander-in-chief is strictly limited to the KDF. It is a strategic job bound within limits set by the Constitution. When you are the commander-in-chief, this is a strategic role, not a tactical role. Ordering police to "shoot them in the legs" is a tactical order, one that's beneath the presidency.

In any event, we decoupled the police from the presidency via Article 245 of the constitution, which denied the presidency direct executive authority over the police. 

This has been the legal reality for the last 15 years. The President of Kenya does not have executive authority over the police. 

The President may shape security policy, but he cannot give tactical commands. That's unconstitutional.

While he chairs the National Security Council, Article 245 of the Constitution is clear: the Inspector-General of Police is independent. The president may not direct the police on matters of law enforcement, investigations, or operational decisions. 

Therefore, any order by the President instructing police to “shoot protesters in the legs” is null and void. 

Kenya's Gen Zs remain unfazed, though. In response to the president, they have released a viral song titled Risasi ya Mguu.

Risasi ya mguu. Tembea kama umepigwa risasi kwa mguu. Usiniue afande ma! Ruto alisema unipige risasi kwa mguu (A bullet to the leg.. Walk like someone who’s been shot in the leg.. Don’t kill me, officer! Ruto said you should shoot me in the leg).

Find it it here.

Patrick Kariuki is the Editor of The Kenyan Observer.