The entire criminal justice system went on trial this week. In Busia County, 21 officers failed to take a plea against charges of police brutality and politician Mike Sonko was bundled through a night court to Kamiti maximum security prison. The experiences should be a wake-up call for those that still believe in the constitutional principle of equality under rule of law.
Hell arrived wearing police uniforms on the doorstep of a Nambale home, Busia County, on 30 March 2020. It was barely five days after President Kenyatta announced a series of measures including a nation-wide curfew from 7pm to 5am. The 25 March declaration was intended to keep all Kenyans safe from the pandemic as well as stop possible crime and unrest.
Roughly thirty minutes after curfew started, eight police officers arrived at the private home of Mzee Bernard Orenga and his neighbours, according to first-hand accounts. Alleging that the home was a bar, the police officers chased and beat both adults and children through the house into the kitchen. Reportedly, the mother was doused with water and subjected to further humiliation. Their furniture and printer were broken in the melee. The eight officers then left.
Roughly 90 minutes later, 15 police officers and 6 Busia County enforcement officers returned. They broke the windscreen of a private car, beat ten people including three minors and threw tear gas into their home. One of the children reportedly suffered fractures from the beatings. Despite the use of excessive force, the officers left, preferring no charges against anyone.
Busia Social Justice Centre human rights defenders rallied to their protection. The Independent Policing Oversight Authority took evidence and statements. Receiving the file, the Office of the Director of Public Prosecutions recently elected to prosecute. The threshold had been met. Among the charges were assault, causing bodily harm, malicious damage to property and attempting to injure citizens with an explosive substance. The Ward Commander who led the operation faced another charge of negligence in the discharge of official duty.
The family, neighbours and Haki Africa were in court this monday to see the officers take their plea. To their shock, not one of the officers appeared in court. Furthermore, the Public Prosecutor announced they were withdrawing the case without giving any reasons. It is nearly a year since that fateful night in March. The refusal to produce the officers in court and the withdrawal of charges undermines IPOA, the bill of rights and disrespects the court. More insidiously, it abandons a family whose only interest is justice for what happened. Two of the three children are candidates in a few weeks.
The right to life and dignity is sacred under our constitution. Our homes are hallowed grounds for many of us. From all accounts what happened should never happen to anyone. Intrusion, trespass, and assault leading to bodily harm in your own home defies reason and must offend us.
Police officers, investigators, prosecutors and judges exercise significant state power and responsibility. For several decades, these powers were serially abused by different arms of the criminal justice system to punish perceived enemies of the state, human rights defenders and even individuals who had done nothing more than offend a State Officer regardless of their grade.
It is for these reasons that Constitution and the Bill of Rights have clear provisions that frame what constitutes fair administrative action (47), access to justice (48), the rights of arrested and detained persons (49, 51) and the right to a fair hearing (51).
In August 2020, the Chief Justice, Interior Ministry Cabinet Secretary, Police Inspector General and rights organisations attended the launch of the Decision to Charge Guidelines by the Office of the Director of Public Prosecutions. The guidelines seek to establish the highest standards for trials at every stage of the case. Treating every case fairly, equally, and promptly guided by strong evidence is critical for this. So too, is early protection of vulnerable witnesses. Delaying or denying credible cases risk all these intentions.
Both the Nambale 21 and Sonko cases demonstrate the rule of law in Kenya is in jeopardy. All eyes must be on the Police Service, Interior Ministry, ODPP and the Judiciary at this moment. Both cases also offer glimpses of two scenarios leading up to 2022. We hope that the scenario of justice and the rule of law is the one taken by all parties concerned. The other is too costly.
This opinion was also published in the Saturday Standard 6 February 2021