Your are here » Home » Makau Mutua Foreign nations duty-bound to keep their citizens informed of threats By Makau Mutua Updated Sunday, June 22nd 2014 at 10:06 GMT +3 Share this story: Kenya: Travel advisories by Western countries – especially the United States and the United Kingdom – infuriate the Jubilee government. Some high ranking Kenyan officials see the warnings as retaliation for the government’s “Look East” policy. Others think the West is punishing Kenya for electing Jubilee leader Uhuru Kenyatta – indicted for crimes against humanity by the International Criminal Court – President of the republic. I don’t have insider information, nor do I traffic in the world of intelligence. But you can take this to the bank – stories on conspiracies by the West against the Kenyatta regime are a bunch of malarkey. It’s absolute baloney to concoct such fantastic and wild hallucinations. There’s nary a scintilla of evidence to suggest such a nefarious plot. Perhaps a lesson in Government 101 might help unclog the propaganda. I hope this makes sense to most, except for those who are utterly constipated with conspiracies. The purpose of the bare republication state – of which Kenya is a variant at the fundament – is to protect life, liberty, and property. A state that fails to fulfil these basic obligations isn’t worth the name. Nor does it deserve the loyalty or respect of those who live under it. That’s because states exist only because citizens do. It’s citizens – not the state – that bestow legitimacy on a government. No government, or state, can exist without people. That’s why a democracy is government “by the people, of the people, and for the people.” Folks must realise that a democratic election – even if completely clean – doesn’t let the government off the hook. An elected government remains under the people’s oversight. It’s continuously accountable 24/7. See also: Jury still out on why jihadists chose Mpeketoni The logic is that popular sovereignty – the power on which the government rests – belongs to the people, not the state. The people can decide, if an elected government becomes dictatorial – or pig-headed – to recall its mandate to govern. In democratic theory, the people’s right to revolution can never be extinguished by an election – even a democratic one. The people can always recall a government that’s gone rogue. That’s what happened to ex-President Viktor Yanukovych of Ukraine. That’s why a single citizen is superior to the state. My point is simple, and it’s backed by political theory and arc of history. It’s this – governments exist to protect the people and their property. That’s why the West has been issuing travel advisories to Kenya. It bears repeating that the first responsibility of any government is to its own people, not the citizens of other states. Both the American and British governments – which often issue travel advisories to Kenya – are primarily concerned about their own citizens and interests in Kenya. It’s true that they are also concerned about Kenyans, but that’s not their priority with respect to terror. It’s ludicrous for Jubilee to lambast the West for warning their citizens against travel to Kenya. This is why. First, any democracy in the West would pay a heavy price if it knew – and failed – to warn its citizens against travel to a country where they would be terrorised. Intelligence services exist precisely to provide the political leadership of a country with this type of actionable information. Withholding information from citizens against an impending terror attack can collapse a democratic government. Imagine – as a hypothesis – that the British MI6 knew of a planned terror attack against its tourists in a Mombasa resort and refused to divulge such information to the revelers. I need not tell you what would happen to the government of PM David Cameron if scores of British tourists were massacred by Al Shabaab. Second, democratic governments in the West could pay a heavy legal price for failing to issue travel warnings in the event of a terror attack. The foreknowledge of a terror plot would legally obligate a government to issue such a warning. Failure to issue a travel advisory might be construed by the courts as gross negligence, dereliction of duty, unwitting complicity, criminal misconduct, or legal incompetence. The government could then be liable for loss of lives and other damages.
The legal cost for inaction – while in possession of knowledge of an imminent attack – exposes the state to enormous legal jeopardy. That’s why the travel advisories shift the risk from the state to the tourist for knowingly traveling to Kenya. Finally, let’s not politicise the terror attacks, or the travel advisories that precede them. The Kenya government shouldn’t be an ostrich. Several weeks ago, Jubilee mandarins screamed to the high heavens when the British closed their Consulate in Mombasa. This week, the terror attack in Lamu tells us the British intelligence on an imminent attack was accurate. It makes sense to me they closed their Consulate. Rather than cry over travel advisories, the Kenya government should concentrate on preventing terror attacks. The writer is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School.