Context is decisive and human beings in powerful institutions don’t always adapt well to big shifts. The recent arrests of journalists, anti-corruption whistle-blowers and Senators suggest that the significance of the Kenyan constitution is not completely understood by all one decade on.
Three months after Kiama wa Mutemi was arbitrarily arrested at night and then released without charges, it seems that Directorate of Criminal Investigations Officers are at it again. In the last one week, they have arrested one anti-corruption whistle-blower, two journalists, a website designer and three Senators.
On August 7, Professor Nyukuri “Kundu” Barasa furnished the Bungoma County Assembly with documents alleging corruption at the County Government. He argues the documents substantiate a case to impeach Governor Wycliffe Wangamati. One day later, he was in the custody of DCI officers who drove him 406 kilometres from Bungoma to Nairobi’s Kilimani police station. The Special Crime DCI Officers appeared more interested in prosecuting him for being in possession of Government documents than whether the documents revealed economic crimes had taken place.
On August 17, the homes of Senators Steve Lelegwe (Samburu) Christopher Langat (Bomet) and Cleophas Malala (Kakamega) were subjected to cat and mouse chases and night-time raids. The arrests came the night prior to a crucial Senate tie vote on the allocation of revenue. Senators on both sides of the issue and the public immediately condemned the arrest. They alleged the police was being used to intimidate elected representatives from discharging their core duties. The Senate suspended debate until the three were set free.
On August 18, Jack Okinyi and Milton Were were arrested. The two journalists had published a story alleging that the county mismanagement of public funding had stalled a road project in Banisa, Garissa county. Several Nairobi police stations declined to take them on the grounds that the charges were unclear. After a night at Muthaiga Police Station, the DCI officers finally took them to Kibera Law Courts in Nairobi.
On August 20, eleven DCI officers arrived at the family home of Charles Gichuki. Searching his laptops and phones for two and half hours, they arrested him and detained him overnight. Before they released him the next morning, they brought down the anti-corruption website he had worked on and threatened to charge him with incitement.
All seven men have now been released without charges. All were tired, annoyed and some nursed physical injuries. In the case of Nyukuri, Okinyi and Were, their constitutional rights to be brought to court within 24 hours were violated. Weighing the law, public prosecutors declined to prosecute them. The experience of the journalists is now with the Independent Policing Oversight Authority. In the case of Professor Barasa, the judge went further to allow him to travel through curfew to speak before the County Assembly the next day.
The arrests of the Senators also proved futile as their colleagues produced their letters blocking any attempt for others to vote on their behalf. The actions of the DCI Officers also earned a grilling for the Interior Cabinet Secretary, Police Inspector General and Director of Criminal Investigations by the Senate Security Committee.
If you are not outraged by these events, you are not be paying attention or may be part of the problem. One of the primary reasons we passed the constitution was to prevent the weaponizing of our law enforcement agencies against democratic debate and whistleblowing against corruption.
Some among us may still nurture some nostalgia for the bad old days. Not long ago, there was a time when Special Branch intelligence officers lurked on every corner, informers were paid for every story and switchboard operators lingered on every phone call. There were many moments when an arbitrary arrest could lead to a forced disappearance, detention without trial or worse still, death at the hands of the state. Lawyers didn’t matter. The police were the investigators and prosecutors and judges took calls from State House before passing judgements.
The last fortnight suggests some State Officers may suffer from maladjustment to our new constitutional context. What they must keep in mind, is that the criminal justice system has changed, and they undermine public trust in their offices. Citizens will be represented by lawyers. Flimsy arrest charges will not be prosecuted and the judiciary always, has the last word.
The involvement of the DCI in these cases is worrying. Edward Snowden once remarked, when exposing a crime is treated as committing a crime, you can only conclude that your state has been hijacked by criminals. I pray this is not so.
This opinion was also published in the Saturday Standard 22 August 2020 as the third article in a series of opinions to mark the tenth anniversary of the Constitution of Kenya
After this article was written, Milton Were was arrested for a second time on Sunday, August 24 night with Robert Obote. Obote was arrested after he demanded an explanation from the officers why they were arresting his cousin. Were was only released on Wednesday 26 August after interventions by Amnesty, Katiba Institute and Article 19 on his behalf