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Arbitrary arrest of leaders only serves to legitimise dissent

By Kamotho Waiganjo | Published Sat, December 9th 2017 at 00:00, Updated December 8th 2017 at 19:38 GMT +3

The arrest of Dr David Ndii at a hotel in the South Coast was a low moment for the Kenya Police Service. My initial assumption was that Ndii was discovered actively engaging in activities that were so treacherous, that the State felt they required immediate attention.

The assumption was if he had been given any warning prior to the arrest, or been summoned to appear before the police, it would have been too late and may have prejudiced national security. He might even have disappeared with the evidence of the nefarious acts he was engaging in.

Since my time in the public service, my instinctive reaction is to give public servants, including the police, the benefit of the doubt. I therefore refused to listen to my better angels who kept whispering that this would end up being an unnecessary fiasco. Imagine my dismay when it transpired that all this drama was because Ndii was being accused of a minor misdemeanor which does not even ordinarily attract a custodial sentence. Indeed the bail was set at a mere 10,000!

Significant agitation

Obviously, Ndii has in the past few months made statements in all manner of forums that have caused significant agitation to those who wield power, but there can be no justification for the unnecessary torment he was accorded if his only crime was this misdemeanor. In any case, if he had committed this misdemeanor or any other crime, there are protocols for how one is arrested.

Unless one is a dangerous criminal who may threaten the security services, a simple request to report to a police station will suffice. It is only if one rejects such entreaty that the full force of the law may be summoned. That is not to say that the utterances made by Ndii are harmless and that some may not even amount to a crime.

The Ndii who was always a conscientious and objective analyst of matters socio-economic, always using his impressive intellect to pen well informed and incisive critiques of government, has mutated to an unrecognisable political ideologue since he hung his boots on the NASA political peg. No one would begrudge Ndii the constitutional right to associate with any political formation, and there is nothing uniquely objectionable about NASA as a political organisation. However, in a country with such dearth of mature intellect, there is a certain sadness which comes from seeing such transformations, even when in the transformed land in Jubilee.

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Where it gets murky

The saddest part about unequivocal support for political formations is that it requires the death of honesty. Many would for instance agree with intellectuals like Ndii that the Jubilee duo have challenges in their governance. Kenya is a tough country to run.

Where it gets murky is when intellectuals who have analytical capacity jump from the recognition that Jubilee has challenges, to presenting NASA as the best alternative and the hope for Kenya’s transformation. That jump may make sense when made by political actors and even the citizen, but any person who sincerely and intelligently analyses the NASA team from any angle would require a massive dose of dishonesty to present NASA as Kenya’s hope for transformation.

While one hopes that persons of Ndii’s intellect would not make that jump to the point where they agitate for an unconstitutional change of government in support of their political formation, it must be said that even where they do, they are not dangerous criminals to be hounded out of hotels and channeled before investigators in the wee hours of the morning. They are entitled to the fullest protection of the Constitution and subjected to due process with dignity.

Actions of the kind that Ndii was subjected to place us in the unfortunate club, comprising some of our neighbours, who believe that the only way to deal with opponents is through massive show of force. What this inevitably does is legitimise more dissent and create heroes, sometimes of the most undeserving. Kenya has little to gain from engaging this reverse gear.

The writer is an Advocate of the High Court of Kenya


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