Teresia Wavinya is an Advocate of the High court of Kenya who is passionate, confident, articulate and multi-faceted person who cares deeply about the profession and the society at large. She has an outgoing and friendly personality, and highly skilled at: analyzing welfare issues that affect advocates and determining solutions while at it, lobbying and coordinating funding for advocates related activities.

She has gathered vast exposure in Criminal and Anti-corruption litigation, Commercial Litigation, Intellectual Property and infringement litigation, Commercial transaction, Arbitration, Conveyancing, Child maintenance, Custody, Paternity, and Constitutional Litigation while upholding the Rule of Law and access to justice for all from her previous and current work engagements namely: Havi & Company Advocates, Katwa and Kemboi Advocates, and Telow Advocates LLP.

Teresia is currently the Managing Partner of Telow Advocates LLP and the Legal Advisor to H.E Hon Wavinya Ndeti (Governor of Machakos County) where she heads the Legislation and Policy drafting, and Compliance Section at the office of the County Attorney in Machakos County due to her prowess of being keen to details.

When a Nation Learns to Stay Home: The Unfinished Lesson of Saba Saba

By Teresia Wavinya Nicholas

There is an African proverb that says until the lion learns to write, every story will glorify the hunter. Saba Saba is one of the few chapters in Kenya's history where the lion found its voice.

On 7 July 1990, ordinary Kenyans walked into uncertainty armed with little more than conviction. They walked because they believed that a nation could not indefinitely imprison the aspirations of its own people. They did not know whether they would return home that evening. Some did not. Others returned bearing scars that would long outlive the events of that day. Yet they walked because freedom has always demanded courage before it bestows its rewards.

The Government of the day believed it could outlast the aspirations of its own people. History proved otherwise.

Three days before the planned Saba Saba rally at Kamukunji Grounds, former Cabinet Ministers Kenneth Matiba and Charles Rubia announced that the meeting would not proceed after the Government declined to permit it. Their decision did not shield them. They were arrested and detained. Their advocate, veteran advocate John Khaminwa, was arrested while seeking to discharge his professional duty on behalf of his clients. The expectation was unmistakable: remove the voices calling for reform and the movement would dissipate.

It did not. Ordinary Kenyans gathered anyway.

The response of the State was swift. Tear gas replaced dialogue. Batons replaced engagement. Live ammunition replaced persuasion. The unrest that followed spread beyond Nairobi and into the national conscience. Official accounts recorded at least twenty deaths and more than one thousand arrests. Yet the State won neither the argument nor history's verdict. Within a year, Section 2A of the Constitution was repealed, restoring multiparty democracy and setting Kenya on the long road that culminated in the Constitution of 2010.

Power had spoken. History replied. The Government demonstrated its power. The people demonstrated something greater: resolve.

Two decades later, Kenya gave herself a Constitution founded upon a simple yet revolutionary proposition; that all sovereign power belongs to the people. The lesson seemed obvious. Governments may delay history. They do not defeat it.

The Anatomy of Panic and an Uneasy Silence

This year's Saba Saba left me asking a different question. What becomes of a nation when its people wake up, not wondering whether they should go to work, but whether they should leave their homes at all?

That is why Saba Saba should never be reduced to a date on the calendar or an annual political ritual. It is a constitutional reminder that governments derive legitimacy not from the coercive instruments they command but from the confidence the people repose in them. It is also a reminder that panic has never been an enduring philosophy of governance.

This year's Saba Saba brought that lesson back into sharp focus. Before sunrise, the country had already received its message. Roadblocks sprang up along major entry points into the Central Business District. Parliament Road was barricaded. Checkpoints appeared on Waiyaki Way, Thika Road, Jogoo Road, Lang'ata Road and other arterial routes. Public Service Vehicles were turned back. Commuters alighted and walked long distances to work. Many schools suspended physical learning. Businesses remained shuttered. Offices quietly advised employees to work remotely.

The city slowed to an uneasy silence before the day had truly begun. One did not need to attend a demonstration to understand this year's Saba Saba. The Government panicked.

Some may find that conclusion uncomfortable. History often is.

Governments panic when they begin to see constitutional freedoms through the prism of fear rather than confidence; when they pre-empt ordinary civic life before public order has even been tested, when schools close not because education has failed, but because uncertainty has prevailed; when businesses remain shut, not because commerce has ceased, but because fear has become the dominant currency of the day; when a citizen's first constitutional calculation is no longer whether to exercise a right, but whether exercising it is worth the risk.

This is not to diminish the constitutional obligation of the State to protect life and property. Far from it. The preservation of public order is one of the primary obligations of every government. No serious constitutional democracy can abdicate that responsibility. Indeed, the National Police Service publicly explained that the enhanced security measures were intended to maintain law and order and prevent disruptions witnessed during previous demonstrations.

Governing Through Confidence, Not Fear

But constitutionalism demands something greater than order. It demands confidence.

• The confidence to secure both the citizen who chooses peacefully to assemble and the citizen who simply wishes to report to work.

• The confidence to facilitate constitutional freedoms instead of appearing to suspend ordinary life in anticipation of their exercise.

• The confidence to demonstrate that public order and constitutional liberty are not enemies but partners.

That confidence appeared wanting. And that is precisely why government must learn from history. History is generous to governments that govern with confidence. It is remarkably unforgiving to those that govern through apprehension.

Chinua Achebe, in An Image of Africa, challenged the dangerous habit of reducing human beings into objects existing merely to serve someone else's narrative. Although he wrote in the context of literature and colonialism, the warning transcends both. Whenever those who wield power begin to see people not as human beings but as problems to be managed, statistics to be explained or crowds to be controlled, governance loses its moral centre. The citizen disappears. The security problem remains.

That is never where constitutional democracies are meant to arrive.

Constitutional democracies are built upon a simple understanding: governments hold power, but the people own it. Article 1 of the Constitution could not have expressed it more clearly. All sovereign power belongs to the people of Kenya. Government exercises that power only in trust and only in accordance with the Constitution. It is for that reason that Article 37 guarantees every person the right, peacefully and unarmed, to assemble, demonstrate, picket and present petitions to public authorities.

These provisions are not ornamental words decorating our constitutional text. They are the legal descendants of Saba Saba. They are the answer to the sacrifices of 1990. They are the Republic's solemn promise that never again should a Kenyan have to fear exercising freedoms that belong to them by birth and by law.

That promise imposes obligations upon citizens. It imposes even greater obligations upon government. The burden of constitutional maturity has never rested exclusively upon the governed. It rests most heavily upon those entrusted with governing. That is why governments must be the students of history.

The generation of Saba Saba has already taught us what courage looks like. They stood against detention without trial. They stood against the criminalisation of dissent. They stood against the belief that power could silence principle. Their struggle was never simply about replacing one political order with another. It was about replacing fear with freedom.

History rewarded that courage. The Constitution became our collective covenant.

Empty Streets and Constitutional Injuries

It is therefore deeply ironic that thirty-six years later, one of the most defining images of Saba Saba was not thousands of Kenyans occupying the streets. It was empty streets. A city that appeared to hold its breath. A Republic that, for a moment, seemed uncertain whether constitutional freedoms could coexist with ordinary life.

That image should trouble every one of us. Not because demonstrations occurred. Democracies have demonstrations. Not because government prepared for them. Responsible governments prepare. It should trouble us because the scale of the precaution projected the image of a State that had become apprehensive of its own people.

Governments panic when they lose confidence in the resilience of their own institutions. There is a profound difference between maintaining public order and governing through fear. Public order enables rights. Fear discourages their exercise. One strengthens democracy. The other quietly weakens it.

The casualties of that fear are rarely those who occupy the corridors of power. They are the ordinary Kenyans who have no luxury of postponing life:

• The trader who opens her kiosk each morning hoping to sell enough to buy supper.

• The boda boda rider whose income depends on the next passenger.

• The advocate whose client cannot reach court because roads have been barricaded.

• The litigant whose hearing is adjourned.

• The pupil who loses another day of learning.

• The patient whose appointment is missed.

• The parent who must choose between earning a living and keeping a child safe at home.

These are not incidental inconveniences. They are constitutional injuries. For every right that cannot be meaningfully exercised because fear has overtaken confidence diminishes the Republic ever so slightly.

As lawyers, we know that constitutions are seldom undone by one dramatic act. They are tested in quieter moments. In the small decisions that determine whether government chooses persuasion over intimidation. Dialogue over apprehension. Confidence over panic.

The Responsibility of the Legal Profession and Leadership

The legal profession understands this responsibility because we have lived it before. During the struggle for constitutional reform, advocates defended detainees, challenged arbitrary exercises of power, insisted upon due process and reminded the nation that even governments are subject to the law.

That responsibility has not changed. The role of the legal profession is neither to echo government nor opposition. It is to echo the Constitution. The Law Society of Kenya has always found its greatest strength when it has stood where the Constitution stands. Beside the people. Beside the rule of law. Beside justice. Never beside fear.

History reminds us that every generation is examined differently. The generation of 1990 was asked whether it possessed the courage to demand democracy. Our generation is being asked a different question. Can we preserve constitutional democracy without surrendering to fear? Can government maintain order without diminishing liberty? Can citizens exercise their freedoms peacefully while respecting the rights of others?

These are not questions for government alone. But government bears the heavier responsibility because public power carries public trust.

Chinua Achebe once observed that the trouble with many post-colonial states was not the absence of capable people but a failure of leadership. Leadership, however, is not measured by how effectively it manages agreement. It is measured by how confidently it manages disagreement.

A government that trusts the Constitution does not fear peaceful dissent. It protects it. Because it understands that criticism is not the opposite of patriotism. It is often its highest expression.

The generation of Saba Saba did not march so that future governments would become more sophisticated in managing fear. They marched so that future generations would inherit a Republic confident enough to trust its own Constitution.

The people have honoured that legacy. Time and again, Kenyans have demonstrated remarkable resilience. They continue to believe in constitutional governance. They continue to seek accountability. They continue to return, despite disappointment, to the promise that this Republic belongs to all of us.

It is government that must now demonstrate that it has learnt the lesson Saba Saba has patiently taught for thirty-six years. For history has already examined one government that governed through panic. It recorded the result. Every government since has had the rare privilege of reading that judgment before writing its own chapter.

History has done its part. The people have done theirs. Government must now do its own. Not by fearing the people. But by trusting them. Not by governing through panic. But by governing through constitutional confidence.

For in the end, governments come and go. The Constitution endures. The people remain. And history, patient as ever, never stops teaching those willing to learn.