Ndii’s arrest calls for reflection on our freedoms

Dr David Ndii’s arrest has sent shockwaves in our political space by mobilising intense anxiety especially in the period of disappearance – between arrest in the night to re-emergence in Nairobi the following morning. In this column, I contribute to the debate of his arrest and the aftermath by examining some issues that have emerged.

Following the insights of renowned Canadian scholar of policing, Jean-Paul Brodeur, I argue that our ability to respond to the threat of repression lies in our commitment to distinguishing between low and high policing.

To simplify, Brodeur suggested that low policing relates to the policing of crime while high policing relates to those policing activities aimed at protecting and maintaining the political regime. In the view of some among us, there is nothing unusual with Ndii’s arrest; it is the normal law enforcement entrusted to the police. As the argument goes, he is subjected to the same laws as other citizens and must therefore be brought to book for incitement.

Yet, this logic which may at first appear sound and obvious is flawed because it conflates high (political) and low (criminal) policing. And many aspects of his arrest stand out, signifying political interest. First, since he was not on the run he could easily have been called into the police station to record a statement - and only be detained, if necessary. Secondly, the suspect timing of the arrest gives credence to the idea it is motivated by the unfolding political drama of which he is part. Marked by an obvious search for information, secrecy and extra-legality, the arrest has all the hallmarks of political policing.

For anyone concerned about the freedom of thought and expression, whatever one’s political affiliation is, understating the background to the arrest becomes critical. Towards this end, let us examine two dimensions captured in the idea that ‘the police were just following orders’ insinuated to emanate from the presidency. I find both parts of this proposition unconvincing – and perhaps even dangerous to the extent that they obscure important political aspects of such arrests.

First, projecting the police as cogs in a wheel who merely follow orders is incorrect and misleading. We know that police exercise discretion in their work, a point well made by Mutuma Ruteere’s study on police behaviour during the 2007/8 post-election violence. My point here is that it is dishonest to acknowledge the exercise of police agency in being civil and respectful to an arrested person and proceed as if their agency stops there. There is no doubt that the orders to arrest were issued by someone in authority but to whom they were issued is an important question to explore.

Secondly, whole the reflexive response to political policing is to point fingers at the political leadership, I would rather argue for the involvement of individuals in such decisions to be proven rather than assumed. My caution here is guided by the simple fact that State bureaucrats, exercise discretion in their actions, often driven by their own logics that are anchored in the need to guarantee their survival.

Often, this is done without recourse to the political leadership - and against individuals - both within and outside government – ostensibly to protect the state. This is perhaps why many repressive tactics survive regime change; they are deeply embedded in the logics of the state itself, whenever the state is presumed to be under threat. Notably, their oft-obscure nature drives many decisions because of the limits of scrutiny. As such, in my opinion, the adage that the fish rots from the head is not always true – and in this case, I am not convinced that it is. To push it is to risk perpetuating the functioning of the oft-obscure state bureaucracy where the real threat might lie.

Perhaps, we might consider placing political expediency behind a genuine engagement with the sources of such threats to our freedoms so that we can address them better.

-The writer is a PhD candidate at the University of Edinburgh. [email protected]