ONE STEP FORWARD, TWO STEPS BACK?

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In Kenya, the month of June is one with great significance as it marks the beginning of a new financial year. This is usually characterized by the enactment of a novel finance act that is set to determine various economic factors of the country, for instance, the cost of living, for the next 12 months. This year, the finance bill that was presented to the national assembly was not received with much enthusiasm by the citizens of Kenya as well as a faction of the legislators, most of whom belong to the current opposition coalition, Azimio la Umoja.  

The Constitution of Kenya 2010 under Article 37 empowers every Kenyan citizen with the right to, “peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.” Hence, while several parties including the senator of Busia County and popular activist, Honorable Okiya Omtatah filed petitions in court challenging the implementation of the Finance Act 2023, Azimio la Umoja coalition explored the option of disputing the same by organizing nationwide demonstrations. This was in a bid to voice the cry of the common mwananchi (citizen) who would suffer under the increase of the already hiked prices of basic commodities such as unga (maize meal) if the legislation were to be carried through. 

Tuesday, July 18th, on the eve of the first day of the planned demonstrations, Azimio allied Member of Parliament of Embakasi Constituency, Honorable Babu Owino was arrested by police officers at the Jomo Kenyatta International Airport, Nairobi. He was driven to Kirinyaga and held in police custody at Wang’uru Police Station, only to be arraigned for trial at the Milimani High Court 3 days later. In addition to that, his family and legal representatives were not allowed to contact him. Gaucho, a man famous for his contributions to Bunge la Wazalendo and who was arrested together with Hon. Babu Owino would point out a man in the courtroom accusing him of beating them up while they were in police custody. Hon.Babu’s lawyers would term this as abduction by the police seeing as tenets of Article 49 under the Bill of Rights were not acknowledged. The Constitution in the aforementioned article expressly provides for the right of a person to be produced before court within 24 hours after his arrest on an ordinary court day. It also stipulates that the arrested person shall be allowed to speak to their counsel and seek legal representation. 

Even amidst the verve of heated confrontation between the pickets and law enforcement, it could not go without notice that how this arrest was handled, apart from violating the rights of Hon.Babu Owino, was extraordinary, the two most striking features being the location of his pre-charge detention and the time that had lapsed before he was arraigned for trial.

                                                Babu Owino arrested; Video courtesy of YouTube
 

It was at the realization of these unique attributes that I delved into the history of arrests, detentions and trials in Kenya in the past that were conducted in a similar idiosyncratic manner.

Concerning matters of location, of notable character is the arrest, detention and trial of the famous Kapenguria 6 in October 1952. Jomo Kenyatta, Bildad Kaggia, Kungu Karumba, Achieng’ Oneko, Paul Ngei and Fred Kubai were the 6 persons who were arrested by the colonial government during the state of emergency in Kenya on allegations of membership and management of the Mau Mau movement. A question of concern arises; Why would the six be tried in an area that would, at that time, be considered far, remote and inaccessible yet they had been detained for allegedly committing the said offences in Nairobi, Nyeri and Kiambu? Professor Ben Sihanya, in Chapter 2, Volume 1 of his series of Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) raises the location of the trial of the 6 at Kapenguria as an issue of concern that “negated public interest”.  I too, find the detention of Hon.Babu Owino in Kirinyaga County after being arrested in Nairobi County a controversial matter.

Fast forward to the 1980s and early 1990s, during the fight against the government of Former President Moi was termed as elitist and dictatorial. Many Kenyans who advocated for the second liberation of Kenya were seen as a threat to the prosperous advancement of the Moi regime and were therefore arrested dramatically, detained for endless periods and tried in kangaroo courts. Some of them would willingly plead guilty during their trials to escape the pain and suffering that they would be taken through in detention at police stations or in the dungeons at the basement of Nyayo House, famously known as ‘Nyayo Torture Chambers’.

An example is Mr. Wachira Waheire. After being arrested on 2nd December 1986, Mr Wachira was constantly tortured by being beaten, burnt using smouldering cigarette ends and denied food because of opposing his alleged involvement in the Mwakenya (Muungano wa Wazalendo wa Kukomboa Kenya) movement. 15 days later, he got fed up with this misery and accepted the allegations. This was when he was arraigned in court and charged on his plea of guilty. The Mwakenya crackdown also led to the arrests of several other people like one Waweru Kariuki. He was arrested at his place of work in Diani and detained at Kwale Police Station for 8 continuous days.

Former Member of Parliament for Runyenjes, Njeru Kathangu recalls his three-day-long detention at the Nyayo Torture Chambers. During this period, he was denied food, water and even permission to answer the call of nature. At different intervals, he was interrogated and forced to admit to being the mastermind of Saba Saba (July 7th 1990 demonstrations) seeing as he had been a senior officer with The Kenya Army.

These examples bring out the character of long periods and the unpleasant conditions of detentions similar to those experienced by Hon Babu Owino during his recent arrest.

Kenya has come a long way since the inauguration of the new constitution in August 2010 which focused on the protection of the right to justice to allow the citizens of Kenya to live without fear. It would be saddening if the manner of arrest and detention of Hon Babu is a sign that we might be heading back into the dark days that we longed so much to escape.

Valerie Moraaa is a student of Law at The University of Nairobi. She can be contacted via email val.moraa261@gmail.com