Purge our statute books of vague laws that executive can abuse

The right to assemble, protest and demonstrate has been in focus once again this year.

Since March, the Azimio La Umoja demonstrations against the cost of living have been marred by violent clashes between protesters and law enforcement. Several human rights organisations, claim police have committed atrocities and used unlawful force in areas like Nyalenda, Kisumu.

Police begun arresting opposition leaders last week as the protests reached a crescendo in a campaign many have characterised as targeting opposition politicians through trumped-up charges, arbitrary arrests, incognito detention, refusal of legal assistance, and confinement beyond the 24-hour limit. Former president Uhuru Kenyatta shocked many by lamenting on live TV about the threats to his sons when DCI officers threatened to search their homes.

A firebrand anti-Kenya Kwanza blogger Pauline Njoroge was arrested shortly after over alleged drug possession, which later morphed into charges regarding her alleged tweets contrary to Section 23 of the Computer Misuse and Cybercrime Act regarding publication of false information. A lawyer, Joshua Otieno Ayika, was charged with subversive activities under Section 77 of the Penal Code, a rarely used provision. Additionally, he was charged under Section 23 of the Cybercrimes Act.

The outrage over alleged State abuse of power has been understandable, with some calling it a return to a police state. Even so, anyone with a good memory would recognise that these tools have continued to be deployed in the past five years without much condemnation – regardless of one’s political affiliation. This selective attitude has undermined democracy, constitutionalism, and the rule of law. How can we achieve equality before the law, the rule of law, and the independence of the police?

In 2017, a six-month-old baby was bludgeoned to death in Nyalenda in Kisumu where similar atrocities were reported. In November, the ODPP charged 12 senior police officers in the area with rape, murder, and torture.

MP Tom Kajwang and Miguna Miguna were violently arrested for treason for their involvement in Raila Odinga’s swearing-in as ‘People’s President’ in 2018. Kajwang was acquitted a year later, notably after the ‘handshake’, but Miguna was not lucky. Apart from his house being grenade-attacked, he was drugged, forcibly deported and blocked from coming to Kenya. The executive blatantly disregarded more than 10 court orders restraining it from violating his rights.

An eerily familiar incident occurred at politician Jimmy Wanjigi’s house in Muthaiga when Special Crimes Prevention and Flying Squad officers sought entry over his alleged possession of illicit arms. Justice Chacha Mwita eventually reprimanded the State for acting irrationally and ordered all his confiscated weapons be returned.

When President Uhuru and his then-deputy fell out, Ruto’s allies’ faced repression from police. Senators Cleophas Malala, Steve Lelegwe, and Christopher Langat were arrested in 2020 allegedly to prevent them from voting. A DP’s communication unit member, Dennis Itumbi, was reportedly abducted and tortured in December 2021, while UDA rallies and politicians were often met with violence, arrest and frustration from the State. In this period, some politicians who were instrumental in passing oppressive laws publicly regretted their actions.

We must purge our statute books of vague laws that executive can abuse. Sections 22 and 23 of the Cybercrimes Act and laws such as subversion should be repealed by Parliament. Laws must be clear, transparent, and consistently enforced. Nobody, not even those in power, should be above the law. Legal processes should be fair and impartial.

First published in The Standard on 28th  July 2023. Kindly reproduced here with permission from The Standard.

Demas Kiprono is a human rights lawyer and a Campaign Manager at Amnesty International Kenya. He writes in his personal capacity. Email: [email protected]