I have lately been in a court of law to represent a fellow citizen on the spurious charge of unlawful assembly contrary to Section 79 of the Penal Code.
I didn’t even pick the charge sheet as this is one of those draconian relics of law from our colonial history. I know, the offence can still be kept in our statutes but for sure, we can do so with a better spruce up of it.
I was representing Julius Kimani Kamau, a well-known human rights defender on a charge of unlawful assembly, purportedly committed within Nairobi's Upper Hill. Particulars of the offence indicated that Kamau was found in possession of a banner saying that poverty in Kenya was man-made. He was charged alone and was brought to court after he spent the night in the cold police cells of Nairobi’s Capital Hill Police Station.
For years now, human rights defenders in Kenya have bemoaned the shrinking civic space and the absence of avenues to communicate public grievances and other matters of interest to those in authority. This is well documented.
Renowned human rights defenders such as Boniface Mwangi, Wilfred Olal and Gacheke Gachihi can attest to the extent of the changing landscape and its impact on the enjoyment by citizens of fundamental human rights.
Interestingly, in the unfolding circumstances, many of the emerging activists say the situation is quite suffocating and often, citizens in a march, a picket or a demonstration end up in police cells, and probably in prison for daring to exercise the right to assemble or demonstrate.
This is what is at the back of my mind as I write this article. Of what significance is Article 37 in the Constitution if there is a silent vow by law enforcement officers to kill it? This is the section of the law which provides that every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
In recent days, despite global demonstrations for truce in the Israeli-Palestine conflict, including right inside the Pro-Israel cities of New York, London or Berlin, few Kenyan human rights defenders have dared to voice their opinions on the raging war.
But of particular frustration to me in all this has been where human rights stand in the Kenya Kwanza administration. The Presidents’ public declaration on the issue is well known, and to a large extent Kenya’s civil society groups had openly warmed up to his stated commitment to police reforms, including elimination of police squads accused of extra-judicial killings, enforced disappearances and brutality. It seems that page of his speech has yet to reach police stations.
When I visited Capitol Hill Police station to visit my client, I left a disparaged soul. It was a disheartening experience. The train of the police reforms must be stuck somewhere in its tracks.
The diary of the police reforms must be blurred and demurred in the shelves. As a legal practitioner, I know there were high hopes that police reforms would go beyond the chairs, uniform stores and carton supplies; that the reforms were not about hardware alone.
The software in the police reforms, Kenyans thought and rightly so, would be anchored in the transformative pointers in the Constitution 2010 that replaced the Kenya Police Force with the National Police Service. The police reforms would hinge on article 244 (c) of the Constitution that the institution would comply with constitutional standards of human rights and fundamental freedoms.
I saw computers. I saw desks and chairs but little in the character of police reforms. The police stations are still hostile and unfriendly, and there are signs that things could get worse.
Court user committees must tackle the inhibitive procedures that still keep advocates away from their clients in custody. I was asked to queue despite identifying myself and the reason for my visit. At which point, my client was scurried out to another room for fingerprinting, and I was asked to wait even longer.
The police must adopt guidelines for more accountability and service friendliness. I think it is time to digitise all police procedures at the police station, including the granting of police cash bail. The digital policeman can automatically calculate within a schedule, the applicable police bails for misdemeanour cases to discourage human interventions and prejudices in such determinations.
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Let other compelling procedures be proved in courts but not the enjoyment of this fundamental right to bail/bond for an accused person in a misdemeanour awaiting trial. In court, when ultimately, I attended my client’s case, I heard an accused person complain to the court that he slept in the police cells at Central Police Station despite a court’s release order which his minders brought but could not be honoured.
And ironically, my client, alone, was made to face a charge of an illegal assembly!
What I write here is a true tale of what may be the experience of many Kenyans who are unable to find space for it. I take my pen to share the fears of a human rights lawyer in the changing democratic space in Kenya today. What is your story?