Why arrest was a blatant violation of my rights

 Saba Saba protesters

Police officers arrest protestors in Banda Street, Nairobi during the Azimio-led Saba Saba anti-government protests on July 7, 2023.

Photo credit: Bonface Bogita | Nation Media Group

When I was unlawfully arrested last Wednesday, my wife chided me, wanting to lighten the gloom with a bit of laughter. Why am I hanging out with Gacheri, she asked. Over the last few weeks you have been going to the village and every time you have been hanging out with her.

She arrested me, I protested. How come you were not charged? she asked. If you were arrested by an OCPD, she would have charged you, my wife persisted, laughter in her voice. She is an OCPD, I tried again. Jackline Gacheri is her name, I offered, now laughing along with my wife.

The moment of humor helped us cope with a most serious issue, the blatant violation of our fundamental rights. This violation is a sure sign that although we willed ourselves a modern Constitution in 2010, we are far from enjoying the fundamental rights guaranteed by that Constitution. And the institutions that should protect those rights are now the ones trampling on them.

It is true that Gacheri has invited me to Nyahururu station twice in in as many weeks. First on Saba Saba day, July 7 and then again on Wednesday July 12. I did not go willingly. In fact, I did not have a choice in the matter, for on both occasions, Gacheri sent about 60 police officers in seven or eight land cruisers.

As an individual, I could hardly refuse such an invitation. On both occasions, my colleague, Sarolyne Mwendia has done better, fighting them off. In one clip, an officer is seen kicking Sarolyne, while another literally tackles her into the police Landcruiser. All the same, we have been bundled into police vehicles, driven at high speed, with sirens blaring to the Nyahururu police station.

Many friends in all the arms of government have been calling me to say pole. We know you have broken no law by being in, and picketing in Nyahururu or wanting to demonstrate. The right to do so is enshrined in article 37 of the Constitution. So an officer cannot be just picking you up. But she has, twice!

After we were arrested last Wednesday, my colleague and I were brought before the sub county security committee. The OCPD declared to those assembled, including our lawyer, that so long as she is the OCPD in Nyahururu, no picketing, no protest or maandamo can ever take place there, whether you have notified the police or not.

All of us in the room were surprised. As an OCPD, Gacheri’s job is to defend the law, not break it. How could she declare that the Constitution does not matter? That she cannot “allow” demonstrations? What law gives you the authority to “allow” we asked her. It is my responsibility to enforce security, she evaded.

The law does not require you to give permission to the citizens so that they enjoy their rights, our lawyer informed her. Rather, the citizen is simply required to notify the officer commanding a police station when they intend to demonstrate. In Nyahururu, the police had been duly notified of the demonstration, a fact they readily admit.

The officer thinks, however, that the citizen should wait for her letter informing the citizen that she, the OCPD has “allowed” the demonstration to go ahead! Obviously, the officer is violating and curtailing our rights. Perhaps she does not know the law. Perhaps she does not care. Either way she is doing a big disservice to the citizens and the republic.

She maintained that although the police had been notified of the demonstration, they had not issued a letter authorising it. No such authorisation is required, we countered. So she tried a different route.

The Inspector General of Police had issued a statement declaring all demonstrations illegal, the OCPD insisted. Therefore, there should be no demonstration in Nyahururu. Firstly, the IG cannot overturn or overrule the Constitution, I told her.

Nobody, no matter their role, can. In any case, do not misrepresent what the IG’s statement says I offered politely. Read the statement out loud, I requested. Fortunately, my lawyer found it online quickly. The IG talked about circumstances where no notification had been received, which was not the case in Nyahururu!

They made a last-ditch effort to explain the violation of our rights. We are stopping the demonstration to protect your security, a member of the sub-county security team offered. What are the specific security threats against me, I asked? You never know, the officer said. At first, I dismissed it as hot air. But after some reflection, I realised it was perhaps meant as a veiled threat.

With no offence to charge us with, the police let us go. The arrest and detention, was, of course, against the law. By arresting the leaders, the police hoped to intimidate the citizens, and scare them away from demonstrations. But the citizens are outsmarting them. Transport operators in many towns for instance, downed their tools silently for most of the day on Wednesday.

Outside, the police officers were milling around. Some sat in the land cruisers. All were in anti-riot gear. Most smiled at us encouragingly. We are all behind you, one offered as we left the station.

The language in use by the police and senior Kenya Kwanza regime officials is also offensive. “We will not allow demonstrations”. “We will not allow”, Kenyans to be killed. “We will not allow the destruction of property”. This is the language of an emerging dictatorship. The enjoyment of my rights does not require to be “allowed” by any official. In fact, the purpose of the police service is to protection my rights.

Further, the language is actually counter-productive. When the president says he will not allow Kenyans to be killed, and then Kenyans die, either shot by police, or meet their death as they run from police, should we conclude by implication, that he the president, has allowed the police to cause the death of those citizens?

@NdirituMuriithi is an economist