Democracy and Senate are under State attack

The Senate during a past session. [File, Standard]

Kenya’s democratic space shrunk significantly following the arrest and rendition of three senators to their home counties on a day they were to participate in the contentious county revenue sharing formula debate. 

It proved how low the government is willing to sink in order to have its way in the Senate. It is an open secret that Senators Steve Lelegwe, Christopher Langat and Cleophas Malala were picked  by Directorate of Criminal Investigations officers and whisked to their home counties to ensure they did not participate in the Senate vote on revenue sharing. 

Despite repeated denials by senators on the government side that the arrests had nothing to do with the historic vote on revenue sharing, the proof was in the pudding as the coalition opposed to the “one man, one vote, one shilling” formula failed to garner numbers to prevail on almost every motion in the House due to the absence of the arrested senators. The government was poised to have its way by force rather than by debate and conviction.

Senator Malala was charged with failure to observe social distancing contrary to the Public Health Act by distributing hand sanitisers at a public gathering. 

Langat and Lelegwe were questioned about perennial conflicts in their counties and released. In short, their arrests were not as urgent as it appeared. Most would argue that the arrests were unconstitutional because they did not meet the necessity, proportionality and legitimate aim test as dictated by the Constitution. Besides, Members of Parliament are not a flight risk in that they can be readily found. 

Be that as it may, their team pulled a fast one when Langat and Malala, in writing, informed the Senate Speaker that they had withdrawn their delegated representatives who were slated to vote on their behalf, thus ensuring that their votes wouldn’t go to the government side. 

Attempts by the Senate to have duty bearers in the government explain how the stars aligned so that three senators were arrested on the day of a very historic vote were defeated by the snubbing of their invitation to Interior Cabinet Secretary Matiang'i and Inspector General of the National Police Service Hilary Mutyambai. The underwhelming report by the Senate Standing Committee on National Security, Defence and Foreign Relations intimated that the CS was on leave despite his twitter handle indicating that he was nearby, launching a boda boda Information Management System. 

But the security committee ejected the media from covering the proceedings when the CS and IGP finally appeared before it on Wednesday. They presumed that the media, in reporting about a fundamental breach to democracy, was going to pose a security threat. Nevertheless, Articles 33 and 34 and 35 of the Constitution ensure that every person has the freedom to seek, receive and impart information and enshrines the freedom and independence of the media and the right to information.

The authors of the Constitution understood the primacy of freedom of expression and right to information as absolutely indispensable for the preservation of a free society and democracy where government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all and good governance. 

Increasingly, national security is being used as an excuse to deny citizens and journalists the right to information. Still, for an entity to restrict rights, certain minimum standards have to be fulfilled as per the Constitution, which requires any limitation shall be provided by law and is necessary for the protection of national security - which was not demonstrated in this instance. 

I challenge the Senate committee to cite what law or regulation they relied on for the limitation of media freedom and access to information and prove the necessity of restriction. Merely relying on security leaves one wondering what devastating impact the divulging of why the government acted the way it did would have on our national security, apart from the embarrassment and backlash the government is already facing. 

Last, how do we ensure that the Kenya Police is not used as a conduit in political machinations as envisioned in the Constitution? The Inspector General and the NPS are supposed to be functionally, operationally and financially independent. 

Mr Kiprono is a Constitutional and Human Rights Lawyer. [email protected]