Arrested, charged for talking; State using colonial law to silence dissent

A man nabbed during Azimio demonstrations being led away by anti-riot police officers in Mathare, Nairobi. [Collins Kweyu, Standard]

It is shameful.

This was the Law Society of Kenya (LSK) President Eric Theuri’s summation of the Kenya Kwanza regime’s actions against protesters.

Theuri, who was arguing in a criminal case against Mathare Member of Parliament (MP) Anthony Oluoch on Monday, stated that it appears that the Office of Director of Public Prosecution (ODPP) and the police have suspended the Constitution in order to silence the voice of dissent against the government.

According to the LSK President, the ODPP has sanctioned trumped-up charges, overseen illegal detentions and gone silent on persons who have been abducted and held incommunicado by the police for simply having a differing opinion to that of the rulers of the day.

“I am just worried, how many people will be charged for their opinions? This country has as many diverse opinions as 50 million of us. Will we send all of them to jail? We do not have the capacity to do so?” paused Theuri.

 Anticipatory bail

To illustrate the contempt that the police are acting with, Theuri said the court is issuing bail only for the police to rearrest the same person.

He gave an example of Nairobi County Assembly Majority Leader Peter Imwatok who was arrested on Friday despite getting a Sh100,000 anticipatory bail order from the High Court.

Imwatok spent the weekend behind bars and was charged with alleged planning subversive activities against the government. He, alongside Oluoch was accused of mobilising members of the public to disobey lawful authority.

Theuri stated that it was unfortunate for the government to use a colonial criminal law to silence critics.

“It is a tragedy that in this day and age a Member of Parliament and a professional can be brought to court and charged with the kind of charges he is facing. The issue was that he has a different opinion from that of the government. As LSK, we are concerned. Noting everything that has happened and being held incommunicado for days, we will have the right time to say something about these charges,” said Theuri.

After the court session, the LSK council sent a statement to the media, stating that although the offences attract sentences of less than six months, there are children and persons languishing in remand prisons following the denial of bail by the magistrate’s court.

Claims of torture and maiming by the police came up in the case. He stated that the society will take action against ODPP officials who have approved charges against those arrested for allegedly engaging in protests or planning subversive activities.

“We, therefore, wish to notify our members within the office of the ODPP that should they make decisions that betray the public trust, undermine the rule of law, and bring disrepute to the legal profession, the LSK shall issue them with a certificate of dishonour and immediately commence proceedings to remove them from the roll of advocates,” the statement read in part. 

 Settle political scores

The statement was signed by Faith Odhiambo (Vice-President) Chrysostom Akhaabi, Kabata Mwaura, Tom K’opere (General Membership Representatives) Cohen Amanya, Njoki Mboce, Ochieng Gor (Nairobi Representatives) Byron Menezes, Lindah Kiome, Michael Wabwile, Vincent Githaiga (Upcountry Representatives) and Riziki Emukule (Coast Representative).

Protester being bundled into a police car after he was nabbed along Juja Road, Nairobi, on July 12, 2023. [Denish Ochieng, Standard]

Meanwhile, Homabay Town MP Peter Kaluma said the police are being used to settle political scores by the Kenya Kwanza administration.

Kaluma stated that there is a blanket order for the arrest of all opposition MPs and MCAs to silence them.

Lawyer Shadrack Wambui said the State is using the criminal justice system to kill the right to assemble and picket.

The lawyer was of the view that Article 37 of the Constitution cannot be limited by the use of police brutality.

He said the State is taking the country back to the dark days of illegal detentions and trumped-up charges.

From the charges, it appears that Azimio MPs and MCAs are being accused of planning a conspiracy to commit subversive activities contrary to section 77 (1) of the Penal Code.

Lawyer Jackson Awele said section 77 (1) of the Penal Code is among the colonial rules that Kenya borrowed from Britain.

According to him, the colonial master used the same to tame persons who were rallying and pushing for independence.

The section was meant for preventing and suppressing rebellion, mutiny, violence intimidation, disorder and crime, and unlawful attempts and conspiracies to overthrow the government or the Constitution.

However, he said, subsequent governments have used the same rule to clamp down on those opposed to bad governance.

“It was one of offences that were inherited from colonial masters to serve the specific interest in colonies. It was meant to manage those who were opposed to colonial rule. Look at all those who were charged and you will see they were fighting for a certain,” said Awele.

The section was used by the government in the 90s to detain persons who were championing for multiparty democracy.

Among those who fell victim to the section include former Chief Justice Willy Mutunga, Dr John Khaminwa, Kenneth Jido Matiba, Oduor Ong’wen, Charles Mboko, and former University lecturer Mukaru Ng’ang’a among others.

The then government was hunting for alleged ‘mwakenya’ members.

After the Constitution 2010, the detention and charges came to haunt Kenyans as they have paid dearly for the government’s actions, with Matiba getting more than Sh1 billion as compensation for torture and illegal detention.