Hong Kong and Kenya: For submission or resilience?

A British colony for 150 years, Hong Kong (HK) returned to Mainland China 20 years ago, though with its own constitution and a “high degree of autonomy”.

But that constitution — the Basic Law — requires HK to enact law on national security issues to protect the Mainland. Treason, sedition and state secrets are already dealt with by HK’s law, though not very satisfactorily. The new law must prohibit secession, and subversion against the Chinese government. An earlier attempt by the HK government to pass such law met with great resistance from people who feared that rights would be unnecessarily violated — and was abandoned.

Following the 2014 ”Occupy Central” [CBD] movement in support of democracy, and the election of young legislators who refused to swear allegiance to China, renewed pressure is coming from China to pass this law. At a recent conference at the University of Hong Kong, participants concerned about the rule of law and human rights, and the continued respect for the principle of autonomy, discussed how Hong Kong can be “resilient” in the face of this Mainland pressure. We can think of resilience as linked to sustainability, and the ability to bounce back from adversity.

Kenya may not have external pressure to pass laws that we fear will be oppressive (though many will recall the outside pressure to pass anti-terrorism law for a decade, until it was passed in 2012). But, like a speaker at the HK conference, Kenyans feel a sense of “fast-moving authoritarianism”. For us it is from our own government, and for Hong Kongers, since their own government is perceived as too deferential to Beijing, it also has a pressing closeness.

DEMOCRACY

There can be no rule of law, and no autonomy, without democracy, various speakers insisted. Their democracy is very limited: Their Chief Executive is chosen essentially by the Mainland government, while Legislative Council (Legco) members are elected partly in a way that reflects HK people’s wishes, but partly by small non-geographical constituencies that generally privilege mainland interests and supporters. Democratic (for which read anti-mainland domination) forces are doomed to be perpetually in opposition.

But, a former LegCo member said, the legislature used to be more active than it is today. Its duty, like that of our Parliament, is to scrutinise government. Particularly it must ensure that the law does not violate rights. It must involve the people through consultation in passing laws (our constitution requires this specifically). In the past LegCo asked hard questions of the promoters of law, it engaged with the public, it made use of experts. Now it has become “dysfunctional”; its best effort at preventing law is filibustering — talking so long the proposal has to be withdrawn. Even this possibility is about to be precluded by revised standing orders.

We have a democratic system (if the IEBC allows us). We elect our members. But do our legislatures — and individual legislators — behave in a democratic way? Do they scrutinise, critique and challenge laws? Especially if something amorphous called “national security” is said to be involved, don’t they roll over too easily? Remember the Security Laws Amendment Bill of 2014 introduced and passed in a great hurry just before Christmas. Arguing that haste is essential is a common ploy — although closer scrutiny often reveals that the proposals have been around for a long time, so the urgency is doubtful.

INSTITUTIONS

Institutions are also important; we have many, especially “independent” commissions and offices. But when a paper at the conference proposed linking new security laws for HK to new institutions to monitor them, a participant commented “We have never created an institution that has not been co-opted by Beijing”. Does that sound familiar? A Bill just published in Kenya seems to be designed to allow the President to co-opt the Salaries and Remuneration Commission chair. How many of our so-called independent institutions are really independent, unaffected by tribalism, corruption or simple subservience to what they are supposed to oversee?

COURTS

How about the judges and lawyers? Judges have often been viewed as the salvation of the rule of law, including in Hong Kong, India — and Kenya. But speakers warned that “Deification leads to disappointment.” Too often, in many countries, and it is sometimes true in Kenya also, if national security is raised courts tend to back off and be less demanding about human rights compliance. Judges sometimes take refuge in the idea that some things are “too political” for judges to handle (an argument used by our Court of Appeal very recently). But just because an issue is politicised — a participant commented — does not mean it is a political and not a legal issue. There is no support in Kenya’s Constitution for the idea that some things do not have to comply with the law.

It is very hard for judges to be the only institution in society that is trusted. Alone they simply cannot carry the entire burden. “Judges may not want to be heroes”.

At least HK judges are not threatened and abused by their own people and forces. But their treatment by Mainland officials is more like that by our President — and lawmakers — of our judges. They are told that only “patriots” should be judges. And that they are administrators and should decide cases in favour of the government.

However, we cannot give up on our judges yet. A good number of them (as in Hong Kong) are still standing up for the Constitution and the rule of law. There is concern in HK that laws about “secession” or subversion might lead to even discussion about whether HK should be independent being criminalised — especially since on the Mainland “subversion” can involve just writing an article. This may become, may have become, an issue in Kenya, too. But we can take heart from the Court of Appeal, who held last year that to demand secession is itself not illegal. And from the words in that case, “I am too keenly aware of the great potential for abuse that lies in the appellant’s argument that in matters of national security the word of the Executive is final, to grant it judicial sanction.”

PEOPLE

What sources of resilience for HK does this leave? The answer from several participants was the people. Not just on the street, demonstrating against the forces of repression and retrogression, but empowered by understanding the constitution and their rights and demanding the rule of law. Participants in HK recalled that, when the security laws matter was raised 14 years ago, they stood in the street, indeed in the rain, handing out leaflets to passers-by explaining what the problems were with the proposed law and what a better law might look like. Can we achieve collective reaction in Kenya, despite ethnic divisions?

GOOD FAITH

Introducing the conference, the Dean of the Law School commented that security is often not an objective concept. Perception is also important — how a situation is viewed. Then there is bad faith — using a situation (like a terrorist attack) as an excuse for cracking down, when cracking down is the policy. Again, this rings a bell for Kenya.

There was discussion on the reality, as opposed to the perception or the manipulated situation. Is there really a threat to Mainland China from HK people? The police cracked down using teargas on young protesters. The response was an increase in the protesters. But, when the teargasing stopped, the protesters fell away. A participant commented, identity with the nation cannot be produced by law. It’s likely to be counter-productive. Does our government realise this?

Another familiar strategy of the Mainland government was identified — creating a sense of insecurity in HK, such as by spiriting away the booksellers of “politically sensitive” books, who then re-emerged on the Mainland. Might Dr David Ndii recognise this type of tactic?

A final comment, a participant said, “We seem to be competing to be the most cynical”. Do we in Kenya have the same tendency?

By Jill Cottrell Ghai