It’s shameful we still have arbitrary arrests

It is true that the more things change, the more they remain the same. Often, it is only the faces, periods of time or location of events that give us the illusion of change.

This is even more telling when, like a house, the idea of change is repainted on the outside, while its foundation is infested and wasting away. This analogy speaks generally to our ongoing quest for the promotion of human rights, and specifically to the respect of civil and political rights as enshrined in our laws.

Decades ago when Kenya was still fashioning its democratic structures, power was wielded in ways that victimised individuals with dissenting social and political views. In fact, some sections of laws, such as the Security Act and the Penal Code, gave sweeping powers to the Executive to arbitrarily arrest and/or indefinitely detain political nonconformists. Unfortunately, the excesses of arbitrary arrests, illegal detentions and even disappearances continue to haunt us today.

Granted, years of activism and fragmentary reforms have birthed new laws and established institutions geared towards checking and balancing power. The laws on detention without trial have been repealed, the rights of accused persons have been fortified with broader bail and bond terms, public interest litigation is now the norm even as the Judiciary grows bolder and less dependent on the whims of the Executive.

Yet, one human rights report after another indicates that we are still miles away from fully appreciating and implementing our civil and political rights. In particular, Article 24 of the Constitution provides that a right or fundamental freedom shall not be limited except by law.

Article 27 of the Constitution provides for the equal protection of the law regardless of tribe, class, gender or political affiliation. Article 29 further states that every person has the right to freedom and security, including not to be deprived of freedom arbitrarily and without just cause.

Article 49 of the Constitution expounds on the rights of an arrested person and demands that they be informed of their reason for arrest, and be allowed to communicate with an advocate and other persons whose assistance is necessary.

The past days have, nevertheless, witnessed a circus of events surrounding the ongoing division of revenue debates in the Senate. Three senators separately had dramatic encounters with police officers based on what many view as a consequence of their stance on revenue sharing.

Now it is generally agreed that while the police officers may have had reason to arrest the three senators, it was their timing and their mode of operation that belied their intentions. In one instance, the police officers camped overnight outside one senator’s house claiming that they had received orders from above to make the arrest.

In another, it is alleged that the police disconnected the water and electricity connection in a senator’s house in a bid to flush him out. No summons had been made prior to their disruptive arrival and no reasons for the arrest were forthcoming during the standoff. It was, however, later revealed that one of the senators was allegedly under arrest for distributing sanitisers to his constituents.

The hue and cry that their arrests have caused has since been televised across the country. Members of the Senate have condemned what they believe to be the Executive’s interference with legislative matters. Others have criticised the excesses of the State security machinery and asserted that there shall be dire consequences to follow.

Weekly occurrence

It must be appreciated, however, that such abuse of power is not unique to the senators. For some citizens, police harassment, arbitrary arrests and disappearances are a weekly occurrence, and oftentimes their violations go unnoticed, especially when they lack the knowledge and resources to pursue a case against the State.

A 2018 High Court decision, for example, found six police officers culpable of arbitrary arrests and directed that they pay 20 victims a total of Sh7.8 million from their salaries. The victims indicated that they were arrested in the course of their normal business, detained in a police vehicle for hours, and thereafter booked in and locked up in Kajiado County without being informed of the reasons for their arrest.

Nineteen of them were later charged with being idle and disorderly, a claim that the affected police officers could not substantiate even after releasing them unconditionally.

Indeed, our laws and institutions have changed, but our psyche around power and influence remain the same. Might the ongoing confrontations with the senators adjust this awful attitude?

Ms Ochola is an advocate of the High Court. [email protected]