Kenya's dangerous drift as the government battles its citizens

Post-Saba Saba Day, allegations of an attempted coup, calls for police to shoot or maim looters, and mass arrests have raised serious concerns about the government’s response to public dissent. How can the current tension be de-escalated?

With 34 fatalities, over 500 civilian and police injuries, and economic losses possibly as much as Sh1.8 billion ($14 million), the Saba Saba demonstrations have been the deadliest this year. This time, it is Bridget Njoki (12) shot watching TV at home that shook the nation most. However, the nation grieves not just for one child, but a generation caught in the crossfire. Several families are mourning, preparing postmortems and raising burial costs while trying to make sense of their unbearable loss.

Protests took place in at least 20 counties. While further verification is still required, fatalities have been reported in Kiambu (8), Nairobi (8), Kajiado (7), Nyeri (2), Kirinyaga (2), Nakuru (2), Meru (2), Embu (1), Murang’a (1) and Nyandarua (1). Despite a police promise to facilitate and protect the Nairobi protests, fencing off the city centre shifted demonstrations to densely populated residential areas. Criticism of police conduct has focused on their failure to facilitate peaceful protest and de-escalate the violence, the deployment of heavily armed masked officers and the disproportionate use of force. The use of military grade weapons and live ammunition in Kajiado and Kiambu residential areas probably accounts for why these two counties saw the highest death toll.

The President, Interior Cabinet Secretary and National Assembly National Defence Committee chairperson have unlawfully issued separate conflicting shoot to kill or maim orders to police officers. Caught in between, two police constables now face two different futures. Hiram Kimathi is on transfer for questioning these orders and Klinzy Baraza Masinde now faces murder charges for the killing of Boniface Kariuki. Over 500 persons face charges across Starehe (125), Nakuru (192), Machakos (96), Tigania (55), Nairobi (30), Embu (24), Kitale (8), Homa Bay (7) and Kirinyaga (5) law courts. The charges range from murder, robbery with violence, malicious damage to private property, theft and unlawful assembly. Among them are Judy King’ori Wangui and Zipporah Njeri Maina. They have been jointly charged with stealing a whopping Sh130 million of supermarket goods.

Thirty-seven others, including Member of Parliament Gitonga Mukunji, Democracy for Citizens Party leaders Peter Kawanjiru and Wanjiku Thiga, have been charged with terrorism, a capital crime. Thiga and Kawanjiru were immediately re-arrested after the court released them on bail and more serious charges preferred.

Charging suspects under the Prevention of Terrorism Act escalates the current situation. It can allow for evidence and testimony to be withheld, thus reducing an accused person’s right to challenge evidence and witnesses. It can also lead to 360-day pre-trial detention. There are several concerns here.

Under the Constitution, prolonged pre-trial incarceration must not be arbitrary. Accused persons must have full access to legal counsel, medical treatment and family and be charged in an open court. Lawful counter-terrorism must not profile individuals based on their ethnicity or political party. Judicial independence will be critical for these cases and those under surveillance and in danger of further arrests. The nation will be watching to see whether all 37 are granted bail on Wednesday. Can the Health CS and affected governors follow Governor Irungu Kang’ata’s example and declare medical and mortuary fee waivers for the June 25 and July 7 victims? Could the National Cohesion and Integration Commission interrupt the increasing ethnic profiling, or must they watch netizens declare #WeAreKikuyus, #WeAreKalenjins and then the remaining 40 other nationalities to protect the unitary nation?

Claims of treason and coups pushes Kenya towards harsher counter-insurgency measures and a national security emergency. Without real evidence, this further risks the credibility of the administration and the justice system. Predictably, increased militarisation will not work. Perhaps it’s time for a ceasefire and the active rebuilding of trust among those whose hearts and lives have been devastated over the last two years.