Since the election of President William Ruto in August 2022, the criminal justice, human rights and access to justice environments have shifted due to deliberate actions by the new regime.
For example, day one of the Ruto administration saw six judges of the Court of Appeal being sworn in. The former president had refused to appoint them.
The six were shortlisted, interviewed and nominated by the Judicial Service Commission (JSC), only for their appointment to be disputed on shaky grounds that the courts ruled against.
In quick succession, the new administration also operationalised the Judiciary Fund, further strengthening judicial independence. The Judiciary will finally be in charge of its budget. In 2019, the Judiciary’s budget was slashed in half by the Treasury as if the administration of justice was merely a department under the Executive.
Concurrently, the Office of the Inspector General (IG) of the National Police Service (NPS) was also finally awarded the Authority to Incur Expenses (AIE), making the officeholder an accounting officer and, for the first time, giving the commander of police financial control over the personnel that he commands.
Before this, the Ministry of Interior was the holder of the AIE, meaning that the IG could not budget, plan, allocate and reallocate operational funds and had to rely on the parent ministry.
Article 245 requires the office to be independent, only taking policy (not operational) instructions from the Cabinet Secretary in writing. The Constitution does not even allow the CS to order the arrest of persons. Only the Director of Public Prosecutions can issue such instructions in writing pertaining to a matter he wants to be investigated.
On October 20, 2020, Miguna Miguna finally returned home after being subjected to one of his country’s worst forms of violence and violations. His home and sanctuary were raided, after which he was arrested/abducted, charged with treason, drugged, deported and barred from re-entering Kenya, including burying his kin.
The courts, the last bastion for the protection of rights, saw the injustice being done to him and made several lawful orders that were blatantly ignored by State and public officers who, ironically, were in the rule of law and security dockets.
Lovers of justice and human rights were happy that the government had ensured the return of Miguna, who, like every other Kenyan, is entitled to freedom from torture, cruel and unusual treatment, the right to security of the person, the right to a fair trial, fair administration of justice, freedom of expression and human dignity. If he sues the State, he will likely get record compensation.
Two weeks ago, the president disbanded the Special Services Unit (SSU) of the Directorate of Criminal Investigations (DCI) and intimated that it might have been involved in extrajudicial killings and enforced disappearances.
Connectedly, two persons of Indian origin who were in Kenya under the contract of Kenya Kwanza were extrajudicially killed during the electioneering period. As the murders are being investigated, one wonders what justified such actions and under whose instructions they took place.
Furthermore, it is noteworthy that an IEBC Returning Officer also disappeared and was later found dead in Kajiado. Last week, IPOA began probing the SSU.
The new regime has shown goodwill from a human rights, criminal justice and access to justice lens. However, the president needs to follow through to ensure that any illegal activities within law enforcement are unearthed and dealt with through the law. We need a commission of inquiry which will unearth the extent and actors involved in turning law enforcers into law violators.