Meeting State's 'enemies' is not equal to treason
Under Kenya’s penal code, it would be treason to attempt the illegal overthrow of an elected government.
On the personal side, it would be treason as well to encompass or imagine and try to inflict mortal harm on a serving president.
Under Kenyan law, it is an act of treason for a person to, among others, levy war against the republic or to give aid or comfort to the enemies of the republic.
At its most aggressive, this bar against aiding the enemies of the republic would imply that any association with the country’s enemies is treason.
Recently, some legislators visited the Head of State of a neighbouring country and were held up at the airport on their return.
They had supposedly left the country without notifying the House Speaker. This was exacerbated by the fact that the relations between Kenya and the country they visited is rather testy at the moment owing to a border dispute currently before the International Court of Justice.
To the authorities, this was a serious act and constituted betrayal of their country for which charges of treason were supposedly being contemplated against the legislators. It is my hope that wisdom has prevailed and that treason charges as will not be brought against the MPs.
But this series of events brings to mind the fact that, bar sedition, the charge of treason is one that is the most often brought against persons who are deemed to be acting in betrayal of their country or whose patriotism is deemed to have fallen short of expectations or who present challenges to the regime.
Under Kenyan law, it is an act of treason for a person to, among others, levy war against the republic or to give aid or comfort to the enemies of the republic. At its most aggressive, this bar against aiding the enemies of the republic would imply that any association with the country’s enemies is treason.
It is, therefore, possible to see why persons with an aggressive nationalistic bent would think that legislators speaking to the president of another country would be coming close to committing the offence of treason. But Kenya is not at war with any country and, therefore, the enemy contemplated under the law on treason would not exist in these circumstances to sustain such a charge.
This kind of zeal reminds me of a case in the United States where a German-born naturalised citizen of the United States named Cramer was charged with treason. The allegations were based on the fact that he had aided and given comfort to Werner Thiel and Edward John Kerling (enemies of the United States) in the city of New York.
All he had done was that he met and drank and had long conversations with the two enemies of the US. However, there was no proof of what was discussed during these meetings or whether Cramer gave them counsel or even paid for their drinks. He was convicted but appealed to the United States Supreme Court which quashed the conviction.
Justice Jackson, writing for the Majority, stated that mere association with an enemy and for whatever duration does not constitute treason unless there is proof that the accused actually provided assistance to the enemies. This was a case of a prosecutor proceeding on mere public opinion that cavorting with an enemy must be met with treason charges.
The case that provides guidance on this matter would be that of an American-born who acquired British citizenship. At the start of the second world war, he and his wife went to Germany and took up a job as a broadcaster for a German radio station. During this time, he delivered broadcast talks in English which were hostile to Britain as Germany’s foe in that war. He was arrested and charged with treason following Germany’s defeat at the end of the war.
The highest court held that by conducting the broadcasts against British interests, the accused had aided the enemy and was guilty of treason. But treason is not just about the aiding and providing comfort to enemies of the republic. It is also a crime meant to protect the sanctity of the lawfully elected government form illegal overthrow but also about the personal protection of the Head of State from personal harm. Under Kenya’s penal code, it would be treason to attempt the illegal overthrow of an elected government. On the personal side, it would be treason as well to encompass or imagine and try to inflict mortal harm on a serving president.
Therefore, it is a fairly serious offence in Kenya as in most countries. But it has not always been so. In England, for example, it went beyond the safety of the Monarch. Under the Treason Act of 1351, there were distinctions of High Treason for seeking to kill the King or his eldest son or violating the King’s consort or eldest unmarried daughter or counterfeiting coinage. Petty Treason involved murdering a lawful superior such as an employer and until 1828, it was an act of petty treason for a woman to murder her spouse or a clergyman to kill his bishop.
Guy Fawkes, after whom Guy Fawkes Day, is named faced treason charges in 1605 for planting explosives under the parliament buildings on a plot to blow up the British parliament during parliamentary proceedings so as to kill legislators. He was charged and convicted for this.
Closer home in neighbouring Tanzania, Gray Mattaka and other persons were in 1971 charged with planning a coup to depose then president by unlawful means and installing another person of their choosing. They were convicted and sentenced to life imprisonment.
In 1981, Kenya had a treason trial against Andrew Muthemba who was charged with planning to depose the then president by unlawful and violent means. He was acquitted of the charges.
In south Africa, one of the longest trials in its history was a treason trial known as the Boeremag trial. It related to a far-right wing terrorist group that in 2002 set off bombs in Soweto with the intention of murdering then president Nelson Mandela while he was opening a school. The plans were thwarted and in October 2013, the ringleader of the plot was convicted of treason and sentenced to 35 years in prison.
Nelson Mandela was also charged with the offence of High Treason in 1955 of activities relating to the freedom struggle against apartheid in South Africa although the charges were eventually dropped. At the Rivonia trial, Mandela was charged with intending to overthrow the government of south Africa by guerrilla warfare and denied the charges. This shows that because treason is a political offence, a treasonable felon in one regime is often deemed a hero and freedom fighter in another one. That’s why in treason trials, the accused usually insist that they were merely acting to win freedom for the people against oppressive regimes.
Mr Owino is the Head of Legal at Nation Media Group Plc