Reflecting on eight parliamentarians in a hole – JILL COTTRELL GHAI

It was quite a week for politico-legal theatre! For surely that was what it was – not a serious exercise in law enforcement or the prevention of hate speech. Yet no-one is supposed to direct the police on what to do in connection with individual cases. Not even the Cabinet Secretary. But how many of us really believe that arresting a neat mix of MPs from the two main groups and charging them with incitement or hate speech was some spontaneous decision of the police uninfluenced by politics?

Like many, I thought that having few MPS locked up in police cells might draw some attention to the disgusting conditions found there. And I also anticipated that they would have experienced and committed lawyers who would challenge any police abuse of power, for the longer term benefit of ordinary Kenyans who might find themselves on the wrong side of the law – or at least of police vindictiveness.

I did not anticipate that the waheshimiwa would stay there quite so long. They were produced in court within 24 hours as the Constitution requires. The underlying idea – or at least principle of good policing – is that the police should not normally arrest a person until they have carried out their investigations. Then they can arrest a person, able to tell them why they are being arrested (which the Constitution requires), take them to court quickly where they will be formally charged, and then either given bail, or kept in custody until their next court appearance. Since investigations have been complete the police do not need them any more, and, if they cannot be released on bail, they will be kept in the custody of correctional services. Occasionally of course things move too fast for full investigations to take place first.

Nothing seems right about what happened to these MPs. There was no reason for them to be arrested until the police had all the evidence they needed. They were not about to disappear. Having been arrested, or even invited to the police station, it is hard to see why they should not have been released even by the police. For the police can let an arrested person go, on certain conditions to ensure they turn up in court.

The judiciary recently published guidelines for judges and magistrates on when to grant bail. The Constitution says that people arrested should be released on bail unless there are “compelling reasons” not to do so. The Guidelines emphasise that the most important reason for denying bail is that the person may not turn up in court for the trial when the time comes. Other legitimate reasons are if the person may interfere with investigations or witnesses, may pose a danger to others, or even be at risk from members of the public. Bail should not be refused as a punishment. Even MPs are innocent until proved guilty.

Did any of the legitimate reasons really apply to the MPs? The magistrate who declined to let them go is reported to have said they could be kept because further investigations were necessary. One wonders whether the police questioned the MPs further while they were in the police station. If not – what truth was there in the assertion that they had to be kept for further investigations? Then the judge whom they petitioned on a constitutional basis refused to let them go made some curious observations (so the media said) about their “influence in society”. How does that supply a compelling reason for their retention?

The police responded to comments about the conditions on the basis that cells in Pangani and Muthaiga were used for people from Mathare. This seems to show either that the police consider this is all the people of Mathare deserve, or that the people of Mathare are responsible for the conditions. Mathare is not amused! And the police hardly show themselves in a good light. In reality the cells in most stations are pretty disgusting. It probably helps to extract bribes from people.

The MPs seem somewhat chastened by the experience – who would not be? I was intrigued that their response was “We shall get a law passed against it”.

I have a message for the MPs – “You already did”. The Persons Deprived of Liberty Act was passed in 2014 – during the current Parliament. Current MPs – if not the Senator – might be expected to know that. Not for the first time one wonders whether they know what they are doing or have done

Here are a few bits from the Act:

A person deprived of liberty shall at all times be treated in a humane manner and with respect for their inherent human dignity.

A person deprived of liberty shall not be confined in crowded conditions.

A person deprived of liberty shall be entitled to a nutritional diet approved by competent authorities.

A person deprived of liberty shall be provided with beddings sufficient to meet the requirements of hygiene and climatic conditions.

A person deprived of liberty shall be provided with clothing sufficient to meet requirements of hygiene,…

And anyone (presumably police or prison officers) who “without lawful justification” deprives a person of any of these rights can be prosecuted and fined up to half a million shillings or sent to prison up to two years. Political instructions (which the MPs alleged the police told them they had received) are not lawful justification – indeed they are unconstitutional

In fact the words of the Constitution itself suggest that the treatment Kenyans regularly receive in police custody is already against the law. As well as the right to bail unless there are compelling reasons, “Every person has inherent dignity and the right to have that dignity respected and protected.” And no-one should be “treated or punished in a cruel, inhuman or degrading manner”, while “Every person has the right to privacy.”

Surely having to shit in public, to sleep on the dirty floor, with no covering, deprived of food is a violation of these rights?

Perhaps this will help MPs realise that often nothing much is achieved by passing laws – or even constitutions.

What is needed is for the police to recognise their responsibilities, and first, perhaps to develop their own rules, that they will enforce. In fact there have been for some time draft new Police Service Standing Orders awaiting formal adoption. These say: “Police cells will be cleaned thoroughly every day and will be whitewashed and disinfected at frequent intervals; prisoners’ blankets will be aired daily and washed when necessary.” And, “a lock up facility shall have – (a) hygienic conditions conducive for human habitation; (b). adequate light, toilet and washing facilities and outdoor area.”

Finally, “Meals will normally be ordered from an appointed contractor, but in exceptional cases may be obtained from a local hotel or restaurant.” And “Should any prisoner so desire, he or she may receive food brought by relatives or friends.”

Passing more laws is a waste of time. Perhaps the MPs would be better employed using their powers to look into conditions in police cells, inquiring why they do not meet constitutional standards, and when new Service Standing Orders will be adopted.

I know many people will have no sympathy with the MPs. I wonder if the MPs themselves have reflected on the public glee at their discomfiture, and what it indicates about the popularity of their kind.

Finally – and back to the political farce: can we expect that in a few weeks or even months any of these MPs will have been convicted and sentenced? Or will it turn out that they did not commit any offence, or they were not charged with the right offences, or the prosecution messed up the case?

And will they sue the police for damages for wrongful detention, or even malicious prosecution? (Malicious prosecution is bringing a criminal case that has no basis and for a wrong motive – the right motive being genuinely to enforce the criminal law.) Perhaps they should.

The Author is a Director at the Katiba Institute.



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